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XCbe  Hmerican  State  Series 


•  AMERICAN  LEGISLATURES  ^ 

AND 

LEGISLATIVE  METHODS 


BY 

PAUL  S.  REINSCH 

PROFESSOR  OF  POLITICAL  SCIENCE  AT  THE  UNIVERSITY  OF  WISCONSIN. 
-AUTHOR  OF  "WORLD  POLITICS  AT  THE  END    OF   THE  NINE- 
TEENTH CENTURY,"  "  COLONIAL   GOVERNMENT," 
"  COLONIAL  ADMINISTRATION  " 


NEW  YORK 

THE  CENTURY  CO. 

1907 


^^* 


5^'^^^ 


GENERAL 


Copyright,  1907,  by 
The  Century  Co. 


'* •  •*  < 
*  •  * 


•  ••••••••••     ••••• 


THE   DEVINNE    PBE88 


PREFACE 

This  volume  seeks  to  furnish  a  description  of  the 
manner  in  which  law-making  bodies— State  and  Fed- 
eral—in the  United  States  are  organized  and  operated. 
There  is  perhaps  in  this  study  more  that  is  critical  of 
the  manner  in  which  these  legislative  organs  work,  as 
compared  with  the  description  of  their  organization, 
than,  strictly  speaking,  is  warranted  by  the  general 
scope  of  the  series  in  which  this  volume  finds  a  place. 
It  is  believed,  however,  that  present  political  con- 
ditions justify  this  shifting  of  emphasis.  In  the  first 
place,  in  the  study  of  legislative  organs,  much  more 
than  in  the  case  of  judicial  and  executive  bodies,  is  it 
necessary  in  order  to  secure  an  adequate  understand- 
ing, to  pass  beyond  a  mere  examination  of  their  mor- 
phology, and  to  consider  the  exact  manner  in  which 
their  functional  activities  are  carried  on.  In  the  sec- 
ond place,  the  legislative  bodies  of  the  American 
State,  and,  indeed,  legislative  bodies  generally,  are, 
at  the  present  time,  being  subjected  to  a  special  popu- 
lar as  well  as  scientific  criticism.  Parliamentary  in- 
stitutions everywhere  have  indeed  during  the  last 
quarter  of  the  nineteenth  century  suffered  a  notable 


16635 


PREFACE 


decrease  of  prestige.  Even  among  those  who  have 
given  much  thought  to  the  matter,  there  are  many 
who  believe  that  more  than  a  merely  temporary  de- 
cline of  efficiency  has  befallen  the  organ  which  until 
quite  recently  had  been  regarded  as  the  chief  source 
of  strength  of  the  Western  political  system.  Yet  no  one 
who  realizes  by  what  gradual  accretions  the  values  of 
civilized  life  are  enhanced  and  in  how  sure-footed  a 
manner  civilization  advances,  will  be  inclined  to  share 
the  view  of  alarmists  who  predict  the  utter  downfall 
of  '* government  by  discussion."  Though  we  may  not 
accept  the  Liberal  dogma  of  government  by  the  best 
reason,  we  must  at  least  admit  that  parliamentary 
institutions  have  become  part  and  parcel  of  our  poli- 
tical life  and  that  they  cannot  be  discarded  at  will. 
High  hopes  have  indeed  been  disappointed,  but  may 
not  these  have  been  given  their  original  pitch  by  poli- 
tical inexperience  and  by  a  too  facile  optimism?  Ee- 
grettable  inefficiency  has  indeed  been  revealed,  but 
perhaps  the  true  function  of  the  parliamentary  body 
has  not  yet  been  determined  and  worked  out  in  prac- 
tice. It  would  indeed  seem  that  too  much  has  been 
expected  of  this  institution.  Too  many  functions  have 
been  conferred  upon  and  claimed  by  it.  The  public 
has  been  rudely  shaken  out  of  its  confidence  in  the 
''best  possible  form  of  government,''  and  has  learned 
by  bitter  experience  that  even  this  form  may  be  put 


PREFACE 


to  the  worst  of  uses,  but  it  will  hardly  do  utterly  to 
condemn  the  instrument  because  mistaken  or  even 
corrupt  use  of  it  has  been  made  in  the  past.  A  little 
more  wakefulness,  a  little  more  attention  to  the  de- 
tailed workings  of  government,  a  more  careful  scru- 
tinizing of  the  personalities  to  be  endowed  with  pub- 
lic power,  may  yield  returns  and  restore  to  usefulness 
and  public  confidence  the  institutions  now  so  gen- 
erally decried.  In  this  work  of  reconstruction,  the 
present  brief  study  cannot  hope  to  do  more  than  call 
attention  to  the  deep  significance  of  the  discrepancy 
between  political  ideals  and  political  practice  in  leg- 
islative action. 

Throughout  the  preparation  of  this  work,  the  author 
has  received  most  devoted  and  valuable  aid  from  Mr. 
Horatio  B.  Hawkins,  now  of  the  Chinese  Imperial 
Customs  Service,  in  the  collection  of  material  and  the 
work  of  verification.  Being  called  abroad  on  a  pul)- 
lic  mission  before  the  book  was  completed,  the  author 
has  intrusted  the  preparation  of  Chapter  I,  which 
deals  with  the  constitutional  framework  of  congres- 
sional government,  to  Professor  Bernard  C.  Steiner 
of  the  Johns  Hopkins  University. 

P.  S.  R. 
University  of  Wisconsin, 
July  1,  1906. 


vii 


CONTENTS 


CHAPTER  PAGE 

I  The  Congress  of  the  United  States 3 

The  term  "Congress" 4 

Apportionments   .          5 

Electoral  Qualifications  and  Elections 13 

Organization  of  Congress  and  Methods  of  Procedure    ....  19 

Special  Functions  of  each  House 29 

II  The  House  of  Representatives 33 

The  Functions  of  Congress 33 

The  Growth  of  the  Speaker's  Power 41 

The  Committee  on  Rules -45 

Recent  Developments  of  Congressional  Procedure 48 

The  Basis  of  the  Speaker's  Power 59 

Leadership  in  the  House 62 

The  Details  of  Congressional  Procedure 71 

HI  The  Senate 79 

The  Development  of  the  Powers  of  the  Senate 82 

Appointments  to  Office 86 

Requests  for  Information 90 

The  Conduct  of  Foreign  Affairs 94 

Relations  to  the  House  of  Representatives 107 

The  Senate  and  Party-Machinery 120 

iv  The  State  Legislatures 126 

Constitutional  Limitations            129 

General  Organization 130 

^Constitutional  Provisions  controlling  Procedure 134 

^"^     The  Question  of  the  Finality  of  the  Enrolled  Bill 142 

Limitations  on  Special  and  Local  Legislation 147 

Constitutional  Amendments 150 

V  Legislative  Committees 159 

Appointment  and  Composition  of  Committees 162 

Joint  Committees 171 

Committee  Hearings 174 

The  Summoning  of  Witnesses 176 

Conference-Committees     , 179 

ix. 


CONTENTS 


CHAPTER  PAGE 

VI  Procedure  in  State  Legislatures  . iss 

Steps  in  Bill  Procedure .  183 

Financial  Legislation    ...      , 186 

vn  Legislative  Apportionments  and  Elections.    .    .  i96 

Irregular  Apportionments 201 

Constitutional  Provisions  and  the  Control  of  Courts      ....  204 

Election  Contests 213 

Election  or  Appointment  of  State  Officers 223 

vin  The  Perversion  OF  Legislative  Action 228 

The  Development  of  Lobbying  Methods 228 

Organization  of  the  Lobby 233 

Bipartisan  Methods 243 

The  Bosses 245 

Methods  of  Control  and  Influence 246 

Legislative  Blackmail 253 

Abuse  of  the  Committee  System 257 

General  Consent 255 

"Ripper"  Legislation 266 

IX  Public  Forces  Influencing  Legislative  Action  .  275 

Party  Organization 275 

Public  Opinion  and  Reform  Organizations 278 

The  Governor  and  the  Executive  Departments 283 

The  Legal  Profession  and  Legislation «...  287 

The  Representation  of  Interests 289 

The  Regulation  of  Lobbying 293 

Legislative  Experts 296 

X  The  Legislative  Product 299 

Excessive  Activity  in  Legislation 299 

Private  and  Local  Laws 300 

/Defective  Form  of  Legislation 304 

l  Confusion  through  Amendments 303 

Legislative  Reform  of  the  Common  Law 315 

Legislative  Counsel 327 

Index ssi 


or 

^LIFORN\^ 


AMERICAN  LEGISLATURES  AND 
LEGISLATIVE  METHODS 

CHAPTER  I 

THE  CONGRESS  OF  THE  UNITED  STATES  ^ 

The  framers  of  the  United  States  Constitution  placed 
in  that  document,  immediately  after  the  preamble,  an 
article  which  provides  for  the  organization  and  power 
of  the  legislative  department  of  the  Federal  Govern- 
ment. This  preeminence  was  rightly  given  the  Legis- 
lature, inasmuch  as  it  is  the  most  important  of  the 
three  departments  into  which  the  members  of  the 
Constitutional  Convention  of  1787,  following  the  analy- 
sis of  Montesquieu,  divided  the  new  government. 

The  United  States  Constitution  is  a  grant  of  powers 
and  not,  like  the  state  constitutions,  a  definition  and 
limitation  of  powers  previously  existing;  so  that  we 
must  look  for  the  powers  which  may  be  exercised  by 
the  Federal  Legislature,  either  in  some  express  grant 
made  by  the  states  to  the  Federal  Government  in  the 
Constitution,  or  in  some  implied  power  found  by 
necessary  and  proper  deduction  from  such  grant.    All 

*  Prepared  by  Professor  Bernard  C.  Steiner. 
3 


AMERICAN  LEGISLATURES 


these  granted  legislative  powers,  express  or  implied, 
are  vested  by  the  Constitution  in  the  Congress  of  the 
United  States. 

Neither  the  phrase  nor  the  institution  was  new  to 
the  members  of  the  Philadelphia  Convention.  The 
word  ' '  congress '  ^  had  been  used  since  the  17th  century 
to  denote  a  formal  meeting  of  deputies  or  plenipo- 
tentiaries of  several  princes  to  treat  about  the  condi- 
tions of  peace  or  to  adjust  some  other  important 
political  interests.  The  Congress  which  framed  the 
Peace  of  Westphalia  in  1648,  laid  the  foundations  of 
modern  diplomacy  and  was  the  forerunner  of  many 
important  gatherings  of  ambassadors.  In  colonial 
America  the  word  had  been  used  for  such  conferences 
of  the  colonies  for  a  number  of  years  and,  in  1765, 
the  Massachusetts  General  Court  thought  it  ''highly 
expedient  that  there  should  be  a  meeting  to  consider 
of  a  general  Congress.'*  At  first,  the  word  seems  to 
have  been  limited  in  meaning  to  its  original  connota- 
tion and  Samuel  Adams  in  1773  spoke  of  a  Congress 
and  then  an  Assembly  of  States,  as  if  the  latter  term 
alone  should  be  used  of  a  true  law  making  body ;  but 
when  the  Second  Continental  Congress  found  it  neces- 
sary to  become  an  organ  of  administration  and  law 
making,  it  continued  to  use  the  old  name.  At  the 
present  day,  it  is  customary  to  speak  of  Congress, 
without  prefixing  an  article,  but  the  Constitution  al- 
ways speaks  of  the  Congress.  The  institution  itself 
owed  its  first  origin  to  those  conferences  which  were 
early  held  between  the  settlers  of  Plymouth  and 
Massachusetts  Bay,  or  of  Maryland  and  Virginia. 
The  ''meetings"  of  the  Commissioners  of  the  United 

4 


THE  CONGRESS  OF  THE  UNITED  STATES 

Colonies  of  New  England,  to  which  gatherings  Massa- 
chusetts, Plymouth,  Connecticut,  and  New  Haven  sent 
representatives  from  1643  to  1685,  had  given  examples 
of  a  federal  body ;  while  projects  for  a  Congress,  like 
William  Penn's  plan  of  union  in  1697,  and  the  occa- 
sional conferences  with  the  Iroquois  at  Albany  kept 
the  thought  of  such  institution  alive,  until  it  took  defi- 
nite shape  in  Franklin's  plan  of  union  presented  at 
the  Albany  Congress  of  1754,  which  plan,  while  re- 
jected then,  had  a  potent  influence  in  forming  the 
Dominion  of  Canada  over  a  century  later. 

To  protest  against  the  acts  of  the  British  government, 
a  Stamp  Act  Congress  had  met  at  New  York  in  1765 
and  a  Continental  Congress  at  Philadelphia  in  1774. 
Its  successor  in  1775  undertook  the  conduct  of  the 
war,  declared  independence  and  drafted  articles  of 
confederation  to  form  a  ''perpetual  union"  of  the 
states.  This  union  was  to  be  made  ''more  perfect" 
by  the  Constitution  of  1787. 

The  defects  of  the  old  Congress,  with  its  one  cham- 
ber, caused  the  members  of  the  Convention  to  make 
the  new  Congress  bicameral  and  to  provide  that  *'it 
shall  consist  of  a  Senate  and  House  of  Representa- 
tives." This  having  been  determined,  the  next  ques- 
tion was  the  basis  of  representation  in  the  two  houses. 
After  a  long  struggle,  in  which  the  representatives  of 
the  smaller  states  contended  for  an  equal  representa- 
tion of  each  state  in  either  house,  as  had  been  the  rule 
in  the  one  house  of  the  Confederation  Congress,  and 
those  of  the  larger  states  insisted  that  representation 
should  be  proportioned  to  the  importance  of  the 
states,  the  so-called  Connecticut  compromise  was  in- 

5 


AMERICAN  LEGISLATURES 


troduced,  whereby,  in  the  Senate,  each  state  has  two 
representatives  and,  in  the  House  of  Representatives, 
the  number  of  representatives  is  based  upon  popula- 
tion. There  were  some  who  had  wished  to  base  repre- 
sentation on  property  and  the  question  of  counting 
the  slaves  was  a  difficult  one,  but  these  matters  were 
finally  settled  by  deciding  that  three  fifths  of  the 
slaves  should  be  counted  in  apportioning  a  state's 
representation  in  the  House  of  Representatives,  and 
that  the  federal  census,  which  is  taken  decennially 
since  1790  to  ascertain  the  population  of  each  state 
for  the  apportionment  of  representation,  should  also 
be  taken  as  a  basis  for  any  direct  taxes  which  might 
be  levied  by  the  national  government.  From  the  rule 
in  regard  to  slaves,  until  the  abolition  of  the  institu- 
tion of  slavery,  there  was  a  **  congressional  popula- 
tion/' consisting  of  the  freemen  and  three  fifths  of 
the  slaves,  in  distinction  fromthe  actual  population. 
At  present  there  are  forty-s&  states,  so  that  there 
are  ninety-tro  senators,  when  all  seats  are  filled. 

The  first  apportionment  of  members  of  the  House 
of  Representatives  was  made  by  the  Constitution  it- 
self, in  accordance  with  a  rough  guess  made  as  to  the 
relative  populations  of  the  states.  When  the  decen- 
nial enumeration  of  persons  is  made.  Congress  reap- 
portions the  membership  in  the  House,  establishing 
whatever  ratio  it  will  between  the  number  of  persons 
and  each  representative,  provided  there  are  not  less 
than  30,000  inhabitants  to  each  member  of  the  House. 
In  practice,  the  number  of  persons  to  each  member 
has  been  increased  at  each  reapportionment,  so  that 
the  increase  of  membership  should  not  make  the  House 

6 


THE  CONGRESS  OF  THE  UNITED  STATES 

too  unwieldy,  and  the  law  now  fixes  1  to  193,284 
as  the  ratio.  In  spite  of  this  increase  in  the  ratio,  the 
size  of  the  House  of  Representatives  has  also  in- 
creased, until  there  are  now  386  members.  New  York 
State  sends  thirty-seven  of  these  and  Pennsylvania 
thirty-two,  while  Delaware,  Idaho,  Montana,  Nevada, 
Utah,  and  Wyoming  have  but  one  member  each.  The 
rule  followed  "is  to  determine  the  amount  of  popu- 
lation which  shall  be  entitled  to  one  representative  in 
Ccmgress,  and  having  allowed  a  representative  to 
each  of  these  numbers,  to  allow  to  every  state  an  addi- 
tional member  for  each  fraction  of  its  numbers  ex- 
ceeding one  half  of  the  ratio,  rejecting  from  consid- 
eration the  smaller  fractions. ' ' 

The  task  of  dividing  the  states  into  congressional 
districts  is  left  to  the  state  legislatures.  This  division 
by  the  state  legislatures  is  often  made  with  a  view  to 
promote  party  advantage  and  without  regard  to  natu- 
ral geographical  lines,  which  practice  is  known  as 
gerrymandering.^  If  the  number  of  representatives 
has  been  increased  by  a  congressional  reapportion- 
ment and  the  state  legislature  has  not  redivided  the 
state  before  the  election,  the  additional  members  are 
elected  on  a  general  ticket,  every  voter  in  the  state 
casting  a  ballot  for  them.  On  a  general  ticket  also 
are  chosen  all  the  congressmen,  as  members  of  the 
House  of  Representatives  are  commonly  styled,  when 
the  state  legislature  has  never  divided  the  state,  as  is 
the  case  with  South  Dakota;  or  when  the  decennial 
apportionment  shows  a  smaller  number  of  congress- 

*B7  act  of  Congress  it  is  required,  however,  that  these  dis- 
tricts shall  be  composed  of  contiguous  territory. 

7 


AMERICAN  LEGISLATURES 


men  from  the  state  than  heretofore  and  the  state  legis- 
lature has  not  redivided  the  state  before  the  election. 
The  representation  of  fractions  was  not  allowed  until 
the  reapportionment  act  following  the  Census  of  1840, 
and  was  then  introduced  so  as  to  ''allot  to  every 
state  in  the  Union  its  proper  and  just  proportion  of 
representative  power.'*  It  is  held,  in  the  words  of 
Webster,  "that  the  representation  of  fractions  less 
than  a  moiety,  is  unconstitutional;  because  should  a 
member  be  allowed  to  a  state  for  such  a  fraction,  it 
would  be  certain  that  her  representation  would  not 
be  so  near  her  exact  right  as  it  was  before.  But  the 
allowance  of  a  member  for  a  major  fraction  is  a 
direct  approximation  towards  justice  and  equality." 
Every  state,  however,  has  at  least  one  member,  so 
Nevada  is  represented  though  its  population  in  1900 
was  less  than  one  fourth  of  the  number  fixed  as  the 
basis  of  representation. 

The  House  of  Representatives  is  chosen  ''every 
second  year  by  the  people  of  the  several  states,"  this 
limitation  in  the  Constitution  preventing  any  Con- 
gress from  extending  its  term  as  the  English  Parlia- 
ment did  in  the  17th  and  in  the  18th  century.  The 
term  of  each  congressman  begins  at  noon  of  the  4th 
of  March  succeeding  his  election,  because  the  first 
Congress  was  summoned  to  meet  upon  that  day. 
Each  new  House  of  Representatives  is  said  to  meet 
with  the  Senate  as  a  new  Congress.  Thus  a  new  Con- 
gress assembles  every  second  year,  and  as  the  first 
one  began  its  session  in  1789,  the  Congress  elected  in 
1906  is  the  60th.  In  the  Constitutional  Convention 
the  two-years  term  was  adopted  as  a  compromise  be- 


THE  CONGRESS  OF  THE  UNITED  STATES 

tween  adherents  of  annual  elections,  as  was  the  rule 
for  most  of  the  state  legislatures,  and  of  triennial 
elections,  as  had  formerly  been  the  rule  in  Parlia- 
ment; and  the  ''Federalist''  had  to  combat  earnestly 
the  idea  "that  where  annual  elections  end,  tyranny 
begins."  Except  in  Connecticut  and  Rhode  Island, 
members  of  the  old  Congress  were  chosen  by  legisla- 
tures of  colonies  or  states,  but  the  f  ramers  of  the  Con- 
stitution determined  on  an  election  of  representatives 
by  popular  vote,  which  fact  has  caused  the  House  of 
Representatives  to  be  called  the  popular  branch  of 
Congress.  It  is  also  sometimes  called  the  Lower 
House,  because  of  the  greater  dignity  of  the  Senate 
or  Upper  House,  or  in  analogy  to  the  use  of  these 
terms  in  England. 

The  electors  of  congressmen  in  each  state  according 
to  the  Federal  Constitution  ''shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislature. ' '  What  these  qualifi- 
cations now  are,  we  shall  consider  in  another  place; 
but,  for  the  present,  it  is  sufficient  to  note  that  the 
electoral  franchise  for  congressmen  varies  according 
to  state  law.  The  wording  of  the  clause  in  the  Con- 
stitution is  to  be  explained  as  determined  by  the  law 
then  prevailing  in  Maryland,  in  which  state  the 
Senate,  the  less  numerous  house  of  the  legislature, 
was  selected  by  a  body  of  electors  chosen  by  popular 
vote.  At  the  time  of  the  adoption  of  the  Constitution, 
property  qualifications  for  voters  were  general  and 
these  or  other  ones  may  still  be  maintained  by  states, 
if  they  so  decide;  but,  since  the  Constitution  guar- 
antees a  republican  form  of  government  to  each  state, 

9 


AMERICAN  LEGISLATURES 


there  can  be  no  suffrage  law  inconsistent  therewith, 
nor  one  which  can  be  classed  as  a  bill  of  attainder  or 
ex  post  facto  law.  The  fourteenth  amendment  to  the 
Constitution,  passed  shortly  after  the  close  of  the 
Civil  War,  gave  Congress  power  to  reduce  the  repre- 
sentation of  any  state  in  the  House  of  Representa- 
tives, ''when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  vice  president  of 
the  United  States,  representatives  in  Congress,  the 
executive  and  judicial  officers  of  a  state,  or  the  mem- 
bers of  the  legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  state,  being  twenty-one  years 
of  age  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or 
other  crime."  The  reduction  is  to  be  according  to 
the  proportion  which  the  number  of  male  citizens 
denied  suffrage  shall  bear  to  the  whole  number  of 
male  citizens  twenty-one  years  of  age  in  such  state. 
The  provision  was  intended  to  prevent  the  disfran- 
chisement of  negroes  in  the  Southern  states,  but  Con- 
gress has  passed  no  law  attempting  to  enforce  it.  A 
further  limitation  upon  the  power  of  the  states  over 
suffrage  is  found  in  the  fifteenth  amendment,  which 
provides  that  ''the  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States,  or  by  any  state,  on  account  of  race, 
color,  or  previous  condition  of  servitude."  It  will  be 
noted  that  this  provision  is  worded  in  negative  terms 
and  does  not  refer  to  any  class  of  persons,  such  as 
women,  who  have  not  previously  enjoyed  the  elective 
franchise,  nor  to  discriminations  by  a  state  not  based 
on  "race,  color,  or  previous  condition  of  servitude," 

10 


THE  CONGRESS  OF  THE  UNITED  STATES 

such  as  an  educational  or  property  qualification.  The 
constitutionality  of  the  so-called  "grandfather  clause'' 
in  some  Southern  states,  admitting  to  the  suffrage  men 
because  they  or  their  ancestors  possessed  the  right  to 
vote  prior  to  the  time  when  occurred  the  admission 
of  negroes  to  the  suffrage,  has  not  been  passed  upon 
by  the  Supreme  Court  of  the  United  States.  At  pres- 
ent, female  suffrage  at  all  elections  has  been  granted 
in  only  four  of  the  smaller  Western  States,  and  of 
the  popular  vote  of  13,500,000  cast  at  the  election  for 
President  in  1904,  it  may  be  estimated  that  less  than 
one  one  hundred  and  fiftieth  was  cast  by  women.  It 
is  worthy  of  note  that  a  person  may  have  the  right  to 
vote  for  a  congressman  in  one  state  and  may  lose  it  on 
removal  to  another  state. 

The  "terms,  places,  and  manner  of  holding  elec- 
tions for  senators  and  representatives  shall  be  pre- 
scribed in  each  state  by  the  legislature  thereof,  but 
the  Congress  may  at  any  time  by  law  make  or  alter 
such  regulations,  except  as  to  the  places  of  choosing 
senators. ' '  However  inexpedient  it  might  be  to  place 
congressional  elections  under  federal  control,  there 
is  no  doubt  as  to  the  constitutionality  of  a  law  pro- 
viding that  the  direction  of  such  elections  be  taken 
from  the  hands  of  the  state  officials  with  whom  it  is 
at  present  lodged.  In  fact,  however,  though  there  has 
been  federal  supervision  of  congressional  elections, 
the  only  provision  of  any  importance  made  by  Con- 
gress and  now  in  force,  is  that  all  congressmen,  ex- 
cept where  a  state  statute  enacted  prior  to  the  national 
law  fixes  a  different  date,  shall  be  elected  on  the 
Tuesday  after  the  first  Monday  in  November.    Tues- 

11 


AMERICAN  LEGISLATURES 


day,  being  near  mid-week,  is  a  convenient  day  for 
most  men  to  go  to  the  polls,  and  it  is  advisable  to 
avoid  placing  elections  on  the  first  day  of  the  month, 
which  is  usually  a  time  of  especially  urgent  business 
engagements.  Oregon  still  elects  congressmen  in  June, 
Vermont  and  Maine  in  September,  in  virtue  of  old 
unrepealed  laws. 

As  to  the  election  of  senators,  the  federal  statutes 
are  much  more  minute  and  exacting.  The  Constitu- 
tion states  that  the  **  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each  State 
chosen  by  the  Legislature  thereof,  for  six  years,  and 
each  Senator  shall  have  one  vote. ' '  The  further  pro- 
vision, forbidding  Congress  from  legislating  as  to 
the  place  where  senators  should  be  elected,  was  in- 
serted to  prevent  the  legislature  from  being  sum- 
moned to  some  inconvenient  place.  It  has  been  set- 
tled by  uniform  acquiescence,  that  the  governor  of  a 
state  is  not  a  part  of  the  legislature  thereof  when  a 
senator  is  to  be  chosen.  The  election  may  be  made 
either  in  joint  conventioi;,  in  which  a  majority  of  the 
whole  legislature  is  present,  or  by  joint  action  of  both 
houses  of  the  legislature  acting  separately.  In  1866, 
Congress  passed  an  act  which  is  still  in  force  and 
which  governs  senatorial  elections.  Under  this  act 
''the  legislature  of  each  State,  which  is  chosen  next 
preceding  the  expiration  of  the  time  for  which  any 
Senator  was  elected  to  represent  such  State  in  Con- 
gress, shall  on  the  second  Tuesday  after  the  meeting 
and  organization  thereof,  proceed  to  elect  a  Senator. ' ' 
On  that  Tuesday,  the  houses  of  the  legislature  vote 
separately  and  viva  voce  for  a  senator,  each  member 

12 


THE  CONGRESS  OF  THE  UNITED  STATES 

naming  his  choice.  The  result  of  the  vote  is  entered 
on  the  journals  of  the  respective  houses  and,  at  noon 
on  the  succeeding  day,  the  legislature  convenes  in 
joint  assembly  and  listens  to  the  reading  of  these 
journals.  If  it  appears  that  any  one  person  has  re- 
ceived a  majority  of  the  votes  in  each  house  he  be- 
comes senator.  But  if  this  is  not  the  case,  or  if  either 
house  has  failed  to  take  proceedings  as  required,  the 
joint  assembly,  by  viva  voce  majority  vote,  chooses  a 
senator,  provided  a  majority  of  the  legislature  be 
present.  If  no  one  is  then  chosen,  the  joint  assembly 
must  meet  at  noon  of  each  succeeding  day  except 
Sunday  during  the  remainder  of  its  session  and  take 
at  least  one  vote  at  each  meeting,  until  a  senator  is 
elected.  Vacancies  are  filled  for  the  remainder  of  the 
term  in  a  similar  manner.  A  certificate  addressed  to 
the  president  of  the  Senate,  signed  by  the  governor 
and  countersigned  by  the  secretary  of  state,  shall  be 
issued  to  the  person  elected  by  the  legislature.  Elec- 
tions may  be  made  at  regular  or  extraordinary  ses- 
sions of  the  legislature,  even  though  no  reference  be 
made  to  such  election  in  the  call  of  extra  sessions,  but 
the  Senate  claims  the  power  to  determine  whether  the 
state  legislature  which  elected  the  senator  is  the  one 
properly  entitled  to  exercise  its  functions.  The  ineli- 
gibility of  the  person  chosen  as  senator  does  not  give 
the  election  to  his  nearest  competitor,  but  creates  a 
vacancy  to  fill  which  a  new  election  is  necessary. 

Having  considered  the  elections  to  Congress,  let  us 
now  review  the  qualifications  of  its  members.  Each 
representative  must  **have  attained  the  age  of  twenty- 
five  years  and  been  seven  years  a  citizen  of  the  United 

13 


AMERICAN  LEGISLATURES 


States"  and  must,  ''when  elected,  be  an  inhabitant 
of  that  State  in  which  he  shall  be  chosen. ' '  Senators 
are  required  to  be  maturer  men.  They  must  be  thirty 
years  old,  have  been  citizens  for  nine  years,  and  be 
inhabitants  of  the  states  they  represent.  It  is  notice- 
able that  members  of  neither  house  are  required  to 
have  citizenship  in  the  state  which  they  represent, 
although  their  residence  is  required  to  be  there.  In 
practice,  an  added  requirement  as  to  residence  for 
each  congressman  is  that  he  shall  be  an  inhabitant 
of  the  district  from  which  he  is  chosen;  though  in 
cities,  such  as  New  York  and  Baltimore,  residents  of 
one  part  of  the  city  have  occasionally  been  chosen 
from  a  district  other  than  that  in  which  they  live. 
Members  of  Congress  are  not  considered  to  be  officers 
of  the  United  States,  and  such  an  officer  is  distinctly 
forbidden  from  being  a  ''member  of  either  house  dur- 
ing his  continuance  in  office,"  lest  his  devotion  to 
duty  be  divided.  In  this  we  differ  widely  from  Eng- 
land, all  of  whose  cabinet  members  must  be  also  mem- 
bers of  Parliament,  in  which  body,  moreover,  officers 
in  the  army  and  navy  often  sit. 

The  fourteenth  amendment  excludes  from  Congress 
any  person  "who  having  previously  taken  oath  as  a 
member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  Legislature,  or 
as  the  executive  or  judicial  officer  of  any  State,  to 
support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection,  or  rebellion  against  the 
same,  or  given  aid  or  comfort  to  the  enemies  thereof.  *  * 
This  clause  was  inserted  to  meet  the  conditions  exist- 
ing at  the  close  of  the  Civil  War;  but  Congress  ha^ 

14 


THE  CONGRESS  OF  THE  UNITED  STATES 

taken  advantage  of  the  power  given  it  to  remove  such 
disability  by  a  vote  of  two  thirds  of  each  house  to 
such  an  extent  that  it  is  believed  that  there  is  no  per- 
son now  living  who  suffers  from  such  disability. 
While  these  disabilities  were  in  force,  it  was  held 
that  the  election  to  Congress  of  a  person  suffering 
from  them  was  voidable  but  not  void,  and  that  a 
subsequent  removal  of  the  disability  entitled  him  to 
his  seat.  A  person  not  properly  qualified  may  sit  in 
Congress,  if  no  one  calls  attention  to  the  lack  of  quali- 
fication. Thus  Henry  Clay  took  his  seat  in  the  Senate 
before  he  was  thirty  years  old.  The  states  have  no 
power  to  add  to  the  qualifications  which  are  required 
for  membership  in  either  house  of  Congress  and  all 
laws  which  attempt  to  do  so  are  mere  self-denying 
ordinances.  TJius  when,  in  Maryland,  the  state  statute 
provided  that  one  of  the  senators  should  come  from 
either  shore  of  the  Chesapeake  Bay,  it  was  a  mere  ex- 
pression of  the  intention  of  the  legislature  and,  in 
fact,  a  second  senator  was  chosen  from  the  western 
shore  a  month  before  the  law  was  repealed.  Story 
well  says,  that,  if  a  state  legislature  has  power  to  add 
to  the  qualifications,  *'a  state  may,  with  the  sole  ob- 
ject of  dissolving  the  Union,  create  qualifications  so 
high  and  so  singular  that  it  shall  become  impracticable 
to  elect  any  representative.  It  would  seem  but  fair 
reasoning,  upon  the  fairest  principles  of  interpreta- 
tion, that,  when  the  Constitution  established  certain 
qualifications  as  necessary  for  office,  it  meant  to  ex- 
clude all  others  as  prerequisites. ' ' 

Each  house  is  the  sole  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members;   and 

15 


AMERICAN  LEGISLATURES 


also  has  the  power  to  punish  a  member  for  dis- 
orderly behavior  by  reprimand,  suspension,  or 
otherwise,  and  with  the  concurrence  of  two  thirds, 
to  expel  him.  The  distinction  between  the  right 
to  refuse  admission  and  the  right  of  expul- 
sion is  important,  since  the  former  can  be  ex- 
ercised by  the  majority  of  a  quorum,  whereas  ex- 
pulsion requires  the  affirmative  vote  of  two  thirds  of 
a  quorum.  The  final  qualification  of  the  elected  mem- 
ber to  hold  his  seat  is  the  taking  an  oath  or  affirma- 
tion to  support  the  United  States  Constitution  before 
the  body  to  which  he  has  been  elected,  after  which 
proceeding  he  is  vested  with  the  full  powers  of  mem- 
bership. 

When  a  vacancy  occurs  in  the  House  of  Repre- 
sentatiyes,  the  governor  of  the  state  in  whose  delega- 
tion the  vacancy  exists,  is  directed  to  issue  writs  of 
election  to  fill  the  residue  of  the  term.  Such  vacancy 
may  arise  by  death,  expulsion,  resignation,  removal 
from  the  state,  or  setting  aside  of  a  previous  election 
by  the  House  of  Representatives.  The  date  of  the 
election  is  in  the  discretion  of  the  governor,  who  may 
call  a  special  election,  or  permit  the  vacancy  to  be 
filled  at  the  next  regular  election.  A  member  of 
either  house  of  Congress  may  resign  his  seat  at  any 
time,  by  a  letter  addressed  to  the  governor  of  the 
state  which  he  represents,  and  it  has  been  held  that 
neither  the  governor,  nor  the  house  from  which  he 
withdraws,  has  the  right  to  refuse  to  accept  his  resig- 
nation. At  the  time  the  resignation  is  sent  to  the 
governor,  it  is  customary  for  the  member  to  address 
a  letter  to  the  presiding  officer  of  the  house  to  which 

16 


THE  CONGRESS  OF  THE  UNITED  STATES 

he  belongs,  apprising  the  house,  through  this  pre- 
siding officer,  of  the  fact  of  his  retirement.  The  res- 
ignation may  be  made  to  take  effect  at  once,  or  upon 
some  date  in  the  future,  although  the  former  is  much 
more  common.  Vacancies  in  the  Senate,  occurring 
during  the  recess  of  the  legislature  of  any  state,  may 
be  filled  by  the  direct  temporary  appointment  of  the 
governor,  whose  appointee  holds  office  until  the  next 
meeting  of  the  state  legislature,  when  the  duty  to  fill 
such  vacancies  devolves  upon  the  latter.  It  was  held 
in  the  case  of  Senator  Quay  of  Pennsylvania,  that  the 
governor  had  no  power  to  appoint,  when  the  legisla- 
ture had  met  and  adjourned  without  filling  the  sena- 
torship,  as  by  such  failure  it  had  impliedly  shown 
that  it  wished  the  seat  to  remain  unfilled.  The  term 
of  the  appointed  senator  expires  with  the  expiration 
of  the  term,  with  the  presentation  to  the  Senate  of 
the  credentials  of  his  elected  successor,  or  with  the 
conclusion  of  the  succeeding  session  of  the  state  legis- 
lature without  electing  a  successor,  whichever  of 
these  events  may  first  occur. 

When  the  first  Senate  assembled  in  1789,  it  divided 
its  members  by  lot,  in  accordance  with  the  constitu- 
tional provision,  **as  equally  as  may  be  into  three 
classes. ' '  The  senators  in  the  first  class  served  for  two 
years,  those  of  the  second  class  for  four  years,  and 
those  of  the  third  class  for  six  years,  so  that  one 
third  might  be  chosen  every  second  year,  and  the 
Senate  became  a  continuous  body,  with  more  than  a 
majority  of  members  holding  over  at  any  one  time. 
Care  was  taken  not  to  place  any  two  senators  from 
the  same  state  in  the  same  class  and,  when  a  new 

2  17 


AMERICAN  LEGISLATURES 


state  is  admitted  to  the  Union,  its  senators  are  placed 
by  lot  in  these  classes,  only  one  being  added  to  any 
one  class,  in  such  manner  as  to  keep  the  classes  as 
nearly  equal  in  number  as  possible. 

At  least  one  session  of  Congress  musi;  be  held  each 
year  and  the  beginning  of  this  regular  session  is  on 
the  first  Monday  in  December,  unless  Congress  by 
law  appoints  a  different  day.  During  the  difficulties 
between  President  Johnson  and  Congress,  the  begin- 
ning of  the  first  session  of  each  Congress  was  fixed  on 
the  fourth  of  March;  but  the  law  was  soon  repealed 
and,  except  for  this  brief  period,  the  December  date 
has  always  been  observed.  It  has  one  obvious  disad- 
vantage,—that  the  election  of  members  has  taken 
place  thirteen  months  previously  and  that  they  do  not 
come  to  the  work  of  legislation  fresh  from  the  voters. 
The  first  regular  session  may  continue  for  an  indefi- 
nite time,  even  to  the  beginning  of  the  second  regular 
session;  but,  in  practice,  this  first,  or  long,  session 
usually  ends  in  the  early  summer  and  it  has  never 
lasted  later  than  October  20.  The  second  regular  or 
short  session  ends  on  the  fourth  of  March,  as  the 
terms  of  the  members  of  the  House  are  then  ended. 
Extra  or  special  sessions  of  Congress,  or  of  either 
house,  may  be  called  by  the  President,  whenever  in 
his  opinion  an  emergency  justifies  it.  Special  ses- 
sions of  the  Senate  have  often  been  called  to  act  upon 
appointments  to  office  and  upon  treaties,  but  no  spe- 
cial session  of  the  House  of  Representatives  sepa- 
rately has  ever  been  called  and  it  is  difficult  to  see 
for  what  purpose  it  could  be  convened.  The  members 
of  Congress  are  to  be  considered  as  representatives  of 

18 


THE  CONGRESS  OF  THE  UNITED  STATES 

their  constituents  and  not  merely  as  delegates.  It  is 
their  duty  to  legislate  for  the  benefit  of  the  whole 
country  rather  than  for  the  narrower  interests  of  the 
district  or  state  whence  they  are  chosen.  Though 
they  will  of  course  consider  carefully  the  wishes  of 
those  who  sent  them  to  Congress,  they  are  not  legally 
bound  to  carry  out  detailed  instructions  from  them, 
nor  are  they  obliged  to  resign  even  if  their  constitu- 
ents, displeased  at  their  action,  should  demand  it.^ 
This  unlimited  power  of  representation  was  doubted 
in  the  early  years  of  the  Republic,  especially  in  the 
Southern  states  and  with  respect  to  the  members  of 
the  Senate,  but  it  is  now  universally  admitted  as  to 
both  houses. 

The  House  of  Representatives  chooses  all  its  officers. 
Its  presiding  officer  is  known  as  the  speaker, — a  name 
derived  from  the  similar  officer  of  the  English  House 
of  Commons,  who  is  so  known  because  he  is  the 
mouth-piece  of  the  House  in  its  intercourse  with  the 
King.  The  speaker  is  always  a  member  of  the  House, 
the  other  officers  are  not  now  members,  although  the 
clerk  was  formerly  often  selected  from  among  the  con- 
gressmen. The  clerk  holds  his  office  until  the  follow- 
ing House  is  convened,  calls  the  new  House  together, 
and  presides  until  a  speaker  is  elected.  Although  this 
election  is  usually  quickly  made,  the  34th  and  36th 
Congresses  arrived  at  a  choice  only  after  bitter  strug- 
gles lasting  for  a  number  of  weeks.  As  the  speaker 
is  a  member  of  the  House,  he  has  a  right  to  vote  upon 

^  The  Constitution  has,  indeed,  not  provided  any  means  by 
which  such  instructions  or  demands  may  be  legally  and  authori- 
tatively originated  by  the  electorate. 

19 


AMERICAN  LEGISLATURES 


all  questions,  and  is  in  fact  required  to  do  so  when- 
ever his  vote  will  decide  the  pending  question,  or 
when  the  vote  is  by  ballot.  In  consideration  of  his 
arduous  labors  and  dignified  position,  he  receives  a 
salary  of  $8,000  a  year,  while  the  other  congressmen 
receive  only  $5,000.  The  speaker  must  authenticate 
by  his  signature  all  communications  made  by  the 
House  to  other  branches  of  the  government.  He  ap- 
points all  standing  committees  and  presides  and  pre- 
serves order  during  the  sessions.  One  of  the  most 
famous  speakers,  Thomas  B.  Reed,  thus  summarized 
his  duties:  *'It  is  the  duty  of  the  presiding  officer  to 
call  the  assembly  to  order  at  the  time  appointed  for 
the  meeting,  to  ascertain  the  presence  of  a  quorum, 
and  cause  the  journal  or  minutes  of  the  preceding 
meeting  to  be  read  and  passed  upon  by  the  assembly. 
To  lay  before  the  assembly  its  business,  in  the  order 
indicated  by  the  rules.  To  receive  any  propositions 
made  by  the  members  and  put  them  to  the  assembly. 
To  divide  the  assembly  on  questions  submitted  by  him 
and  to  announce  the  result.  To  decide  all  questions 
of  order  subject  to  an  appeal  to  the  assembly.  To 
preserve  order  and  decorum  in  debate  and  at  all  other 
times.  To  enforce  such  of  the  rules  of  the  assembly 
as  are  not  placed  in  charge  of  other  officers,  or  of 
which  the  enforcement  is  not  reserved  by  the  assem- 
bly. To  answer  all  parliamentary  inquiries  and  give 
information  as  to  the  parliamentary  effect  of  pro- 
posed acts  of  assembly.  To  present  to  the  assembly 
all  messages  from  coordinate  branches  and  all  proper 
communications.  To  sign  and  authenticate  all  the 
acts  of  the  assembly,  all  its  resolves  and  votes.     To 

20 


THE  CONGRESS  OF  THE  UNITED  STATES 

name  a  member  to  take  his  place  until  adjournment 
of  the  meeting  and  in  general  to  act  as  the  organ  of 
the  assembly  and  as  its  representative,  subject  al- 
ways to  its  will."  Among  the  other  officers  of  the 
House  are  the  sergeant-at-arms,  who  must  preserve 
order,  the  doorkeeper,  the  postmaster,  and  the  chap- 
lain. All  these  officers  are  chosen  by  majority  vote 
of  the  House,  hold  their  offices  until  their  successors 
are  elected  and  have  qualified,  and  appoint  their  sub- 
ordinates. The  senators  receive  the  same  salary  as 
members  of  the  House  and,  like  them,  choose  their 
officers,  with  the  important  exception  that  the  vice- 
president  of  the  United  States  is  ex  officio  the  presi- 
dent of  the  Senate,  in  which  position,  however,  he 
has  no  vote,  unless  the  members  are  equally  divided 
on  a  question.  The  Senate  chooses  a  president  pro 
tempore,  who  presides  in  the  absence  of  the  vice- 
president,  or  when  he  exercises  the  office  of  President 
of  the  United  States.  It  is  customary  for  the  vice- 
president,  shortly  after  taking  the  oath  of  office,  to 
absent  himself  from  the  Senate  for  a  day,  in  order 
that  a  president  pro  tempore  may  be  chosen.  The 
tenure  of  this  officer  is  at  the  pleasure  of  the  Senate 
and,  as  he  is  always  a  member  of  the  body,  he  has 
a  vote  on  all  questions.  The  other  officers  of  the 
Senate  are  about  the  same  as  those  of  the  House  and 
bear  the  same  names,  except  that  there  is  a  secretary 
instead  of  a  clerk. 

Each  house  determines  the  rules  of  its  proceedings. 
The  Senate  rules  continue  in  force  until  changed,  but 
each  House  of  Representatives  is  a  new  body  and 
therefore  makes  a  new  set  of  rules,  carrying  on  busi- 

21 


AMERICAN  LEGISLATURES 


ness  under  the  common  parliamentary  law,  until  the 
rules  are  adopted.  It  is  usual  for  each  house,  at  first, 
to  adopt  the  rules  of  the  last  one,  in  whole  or  in  part, 
and  to  make  relatively  few  changes  in  them,  in  fram- 
ing its  own  rules. 

The  senators'  and  representatives'  salaries  are  fixed 
by  law  and  have  remained  at  their  present  figure  since 
1874.  Each  Congress  has  absolute  power  over  its  own 
pay  and,  in  every  case  of  change,  the  law  has  been 
made  retroactive,  so  as  to  take  effect  from  the  begin- 
ning of  the  Congress  which  made  it.  In  addition  to 
the  salary,  each  member  receives  an  allowance  for  sta- 
tionery of  $125  each  year,  a  mileage  of  twenty  cents 
per  mile  every  session,  and  the  privilege  of  appoint- 
ing a  private  secretary  at  a  salary  of  $1200  per 
annum.  The  members  of  the  Confederation  Congress 
were  paid  by  the  states,  those  of  the  British  Parlia- 
ment are  not  paid  at  all ;  but  it  was  felt  that  the  mem- 
bers of  the  national  Congress  should  be  paid  by  the 
Nation.  The  long  distances  traversed  by  the  members 
from  their  homes  to  the  capital,  the  lack  of  a  leisure 
class,  the  feeling  that  poor  men  ought  not  to  be  ex- 
cluded, and  the  reasonableness  of  the  rule  that  the 
state  should  make  all  legislators  a  fair  recompense 
for  their  services,  caused  a  rejection  of  the  British 
precedent.  Members  also  have  certain  personal  privi- 
leges which  were  granted  by  analogy  of  those  of  mem- 
bers of  Parliament.  Thus  they  are  privileged  from 
arrest,  in  all  cases  except  treason,  felony  and  breach 
of  the  peace,  at  the  session  of  their  respective  houses 
and  in  going  to  and  returning  from  the  same.  Clearly 
the  country  ought  not  to  be  deprived  of  the  services  of 

22 


THE  CONGRESS  OF  THE  UNITED  STATES 

its  representatives,  unless  they  have  been  guilty  of 
grave  offences.  Another  important  privilege  is  that 
senators  and  representatives  shall  not  be  questioned 
in  any  other  place  for  any  speech  or  debate  in  either 
house,  and  so  shall  not  be  responsible  out  of  Congress 
for  words  spoken  in  that  body,  which  responsibility 
might  unduly  limit  freedom  of  debate. 

There  are  also  certain  restrictions  imposed  upon  a 
senator  or  representative.  He  may  not,  ''during  the 
time  for  which  he  was  elected,  be  appointed  to  any 
civil  office  under  the  authority  of  the  United  States, 
which  shall  have  been  created  or  the  emoluments  of 
which  shall  have  been  increased  during  such  time; 
and  no  person  holding  any  office  under  the  United 
States  shall  be  a  member  of  either  house  during  his 
continuance  in  office."  These  disqualifications  were 
intended  to  prevent  corrupt  bargains  and  understand- 
ings between  the  Executive  and  members  of  Congress 
and  to  keep  the  two  branches  of  government  distinct. 
There  is  no  prohibition,  however,  on  the  appointment 
of  a  senator  or  representative  to  a  naval  or  military 
office  newly  created  or  increased  in  salary,  nor  to  the 
appointment  of  a  member  of  Congress  to  such  a  civil 
office  immediately  upon  the  expiration  of  his  term, 
nor  to  his  appointment  to  a  civil  office  created  before 
his  term  began,  provided  he  resign  his  seat  to  accept 
such  office. 

A  majority  of  each  house  constitutes  a  quorum  to 
transact  business  and  a  majority  of  this  quorum  is 
sufficient  to  carry  all  measures  except  bills  which  the 
President  has  vetoed  and  amendments  proposed  to 
the  Constitution,  for  which  two  thirds  of  a  quorum 

23 


AMERICAN  LEGISLATURES 


are  needed.  It  will  be  seen  that  with  a  bare  quorum 
present,  favorable  votes  of  one  more  than  one  fourth 
of  the  total  members  may  carry  an  ordinary  measure, 
but  this  minimum  is  usually  exceeded.  In  most  of 
the  Congresses  since  the  Fifty-firs^ the  speaker  has 
had  power  to  ''count  a  quorum"  in^rtain  cases,  that 
is  to  say  ''at  the  suggestion  of  the  speaker  the  names 
of  members  sufficient  to  make  a  quorum  in  the  hall  of 
the  House,  who  do  not  vote,  shall  be  noted  by  the  clerk 
and  recorded  in  the  Journal  and  reported  to  the 
speaker,  with  the  names  of  the  members  voting,  and 
be  counted  and  announced  in  determining  the  pres- 
ence of  a  quorum  to  do  business."  If  a  quorum  is 
not  present,  the  Constitution  permits  a  smaller  num- 
ber to  adjourn  from  day  to  day  and  authorizes  them 
to  compel  the  attendance  of  absent  members,  in  such 
manner  and  under  such  penalties  as  each  house  may 
provide.  The  House  of  Representatives,  by  its  rules, 
has  fixed  the  smaller  number  at  fifteen,  the  Senate 
has  named  no  particular  number.  With  this  power, 
whenever  a  quorum  is  found  wanting  by  call  of  the 
roll  or  count  of  the  presiding  officer,  the  sergeant-at- 
arms  may  be  furnished  with  a  list  of  those  members 
whom  a  call  of  the  House  discloses  as  absent  and  be 
sent  to  request,  or  if  necessary  to  compel,  the  presence 
of  those  absent  members. 

Each  house  must  keep  a  journal  of  its  proceedings, 
that  is  a  record  of  what  was  done  at  the  sessions,  and 
this  journal  for  each  day  is  read  and  corrected,  if 
need  be,  at  the  beginning  of  each  succeeding  day's 
session.  The  journal,  or  record  of  things  done,  should 
be  distinguished  from  the  stenographic  report  of  the 

24 


THE  CONGRESS  OF  THE  UNITED  STATES 

debates  which,  as  published,  is  known  as  the  *' Con- 
gressional Record. ' '  In  the  early  Congresses,  the  Sen- 
ate's  sessions  were  secret,  so  that  we  have  no  official 
record  of  its  debates ;  at  present,  the  Senate  maintains 
secrecy  in  the  ^l^xecutive  sessions'*  in  which  it  dis- 
cusses communic^ions  from  the  President  concerning 
foreign  affairs,  treaties,  and  nominations  to  federal 
offices.  The  Constitution  requires  that  the  journal  be 
published  from  time  to  time,  ''except  such  facts  as 
may  in  the  judgment  of  the  houses  require  secrecy. ' ' 

There  are  a  number  of  ways  in  which  measures  are 
voted  upon  in  Congress.  The  most  usual  manner  is 
viva  voce,  in  which  the  presiding  officer  decides  the 
result  in  the  affirmative  or  negative,  according  to  the 
greater  volume  of  the  combined  voices  of  those  voting 
on  either  side.  If  he  is  in  doubt,  he  asks  the  members 
to  rise  while  he  counts  them;  and  if  his  decision  is 
questioned  and  a  "division"  of  the  House  called  for, 
the  count  must  be  made  and  the  result  announced  to 
the  speaker  by  two  tellers,  between  whom  the  members 
pass.  A  more  formal  method  of  voting  is  by  yeas  and 
nays,  in  which  the  clerk  calls  the  roll  and  records 
after  each  man's  name  "yea,"  "nay,"  "absent,"  or 
"not  voting."  This  method  puts  a  man  upon  record 
and  shows  his  constituents  and  the  world  at  large  how 
his  vote  was  cast.  The  Constitution  provides  that 
' '  the  yeas  and  nays  of  the  members  of  either  house  on 
any  question  shall,  at  the  desire  of  one  fifth  of  those 
present,  be  entered  on  the  journal." 

In  case  a  house  wishes  to  postpone  business  for  a 
short  while,  it  may  take  a  recess;  if  it  has  concluded 
all  the  business  of  the  day  it  may  adjourn  until  the 

25 


AMERICAN  LEGISLATURES 


following  day,  or  indeed  for  more  than  one  day;  but 
the  Constitution  wisely  prevents  friction  and  dead- 
locks between  the  two  houses,  by  providing  that 
''neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  are  sitting. ' '  By  mutual  agree- 
ment, the  two  houses  may  adjourn  to  any  day  cer- 
tain, or,  if  they  wish  to  end  the  session,  adjourn  in- 
definitely or  sine  die.  As  the  President  has  the  power 
of  convening  Congress  in  extraordinary  session,  so 
he  also  has  the  power,  in  case  of  disagreement  between 
the  houses  with  respect  to  the  time  of  adjournment, 
to  adjourn  them  to  such  time  as  he  shall  think  proper. 
It  has  never,  however,  been  found  necessary  to  exer- 
cise this  power. 

While  in  session,  practically  all  of  the  business  of 
the  houses  is  referred  to  committees  and  important 
measures  are  often  discussed  informally  by  the  whole 
House,  in  what  is  known  as  Committee  of  the  Whole. 
The  committees  are  of  two  kinds:  standing,  that  is, 
appointed  under  the  standing  rules  of  the  House  and 
dealing  with  some  permanent  branch  of  legislation; 
and  select,  that  is,  such  as  are  appointed  to  consider 
some  particular  question.  The  committees  may  also 
be  classified  by  cross  division  into  joint  committees, 
in  which  there  are  members  from  both  houses,  and 
committees  composed  entirely  of  members  from  one 
house.  The  committees  are  usually  arranged  so  that 
the  chairman  and  the  majority  of  the  members  are 
chosen  from  the  adherents  of  the  political  party  which 
has  a  majority  in  the  membership  of  the  body.    In 

26 


THE  CONGRESS  OF  THE  UNITED  STATES 

the  last  Congress  (the  Fifty-ninth),  there  were  fifty- 
five  standing  and  ten  select  committees  of  the  Senate 
varying  in  membership  from  three  to  seventeen; 
while  in  the  House  of  Representatives  there  were 
sixty-one  standing  committees,  varying  in  member- 
ship from  five  to  nineteen.  As  every  bill  is  referred 
to  a  committee,  it  is  easy  to  see  how  these  bodies  can 
control  legislation,  by  failing  to  report  measures  re- 
ferred to  them  or  by  casting  the  weight  of  their  influ- 
ence for  or  against  certain  bills  by  favorable  or  un- 
favorable reports. 

Every  measure  introduced  into  Congress  is  put  in 
the  form  of  a  bill  or  a  resolution.  A  bill,  when  passed, 
becomes  an  act  and  is  distinguished  by  the  enacting 
clause  which  reads  thus,  **Be  it  enacted  by  the  Con- 
gress of  the  United  States."  A  resolution  contains 
the  word  resolved  in  place  of  enacted.  Resolutions  are 
usually  of  a  less  permanent  character  than  laws  and 
express  rather  the  opinion  of  the  Legislature,  but  it 
is  frequently  difficult  to  distinguish  them  from  laws 
in  their  subject  matter.  Resolutions  are  classified  as : 
joint,  that  is,  requiring  the  action  of  both  houses; 
concurrent,  where  the  same  words  are  adopted  by  each 
house  independently  of  the  other ;  and  several,  that  is, 
passed  upon  only  by  one  house.  The  ordinary  course 
of  a  bill  or  resolution  which  is  passed  through  the 
house  involves  three  readings  on  three  different  days, 
between  which  readings  it  is  referred  to  and  re- 
ported on  by  an  appropriate  committee,  engrossed  or 
written  out  in  a  fair, hand  by  a  copying  clerk,  and 
printed.  Having  passed  one  house  it  is  sent  to  the 
other  where  it  goes  through  the  same  procedure,  ex- 

27 


AMERICAN  LEGISLATURES 


cept  that  a  second  engrossing  and  printing  is  not 
necessary.  In  either  house,  the  bill  may  be  amended, 
and,  if  the  two  houses  agree  as  to  the  general  princi- 
ple of  the  bill,  but  differ  as  to  details,  a  joint  com- 
mittee of  conference,  appointed  especially  to  consider 
the  bill,  endeavors  to  come  to  an  agreement  which 
both  houses  may  accept.  When  a  bill  has  passed  both 
houses,  it  is  submitted  to  the  President  of  the  United 
States.  If  he  approve  it,  he  signs  it  and  it  then  be- 
comes a  law.  If  he  disapprove  of  it,  he ' '  shall  return  it, 
with  his  objections,  to  that  house  in  which  it  shall 
have  originated, ' '  which  procedure  is  known  as  a  veto. 
The  President  has  ten  days  (Sundays  excepted)  to 
sign  or  veto  a  bill.  If  he  does  neither  within  this 
time,  the  bill  becomes  a  law  without  his  signature,  so 
that  his  obstruction  may  not  prevent  legislation.  He 
is  entitled  to  the  full  ten  days  for  consideration  and, 
as  it  is  held  that  he  cannot  sign  a  bill  when  Congress 
is  not  in  session  and,  of  course,  cannot  return  it  with 
objections,  if  the  house  is  not  sitting  to  consider  the 
objections,  all  bills  sent  to  the  President  within  ten 
days  of  the  end  of  the  session  and  not  signed  by  him 
before  the  end  of  the  session  fail  to  become  laws  for 
lack  of  signature.  This  is  sometimes  called  the  Presi- 
dent's pocket  veto.  In  order  to  prevent  Congress  from 
evading  the  veto  power,  by  placing  the  subject  matter 
of  a  law  under  some  other  form,  the  Constitution  pro- 
vides that  "every  order,  resolution,  or  vote,  to  which 
the  concurrence  of  the  Senate  and  House  of  Repre- 
sentatives may  be  necessary"  shall  be  presented  to 
the  President  and  that  the  subsequent  procedure  upon 
it  shall  be  the  same  as  that  of  a  bill.    Votes  on  a  ques- 

28 


THE  CONGRESS  OF  THE  UNITED  STATES 

tion  of  adjournment,  on  which  the  wishes  of  the  houses 
should  be  unfettered,  are  the  sole  exception  to  this 
rule.  If  the  President  vetoes  a  bill,  the  house  to 
which  he  returns  it  ''shall  enter  the  objections  at 
large  on  their  journal  and  proceed  to  reconsider  the 
bill. ' '  If  after  such  reconsideration,  two  thirds  of  that 
house  shall  agree  to  pass  the  bill  it  shall  be  sent  together 
with  the  objections  to  the  other  house,  by  which  it  shall 
likewise  be  reconsidered  and,  if  approved  by  two  thirds 
of  that  house,  it  shall  become  a  law.  But  in  all  such 
cases,  the  votes  of  both  houses  shall  be  determined  by 
yeas  and  nays  and  the  names  of  the  persons  voting 
for  and  against  the  bill  shall  be  entered  on  the  journal 
of  each  house  respectively. ' ' 

Amendments  to  the  United  States  Constitution  may 
be  proposed  to  the  several  states  by  an  affirmative 
vote  of  two  thirds  of  both  houses  of  Congress.  These 
amendments  are  not  presented  to  the  President  for  his 
signature,  as  they  have  already  received  a  vote  which 
would  be  sufficient  to  overrule  a  veto. 

In  addition  to  the  several  functions  which  they  ex- 
ercise in  common,  the  two  houses  have  certain  special 
functions.  Thus  the  Senate  acts  as  a  part  of  the 
treaty-making  power,  a  vote  of  two  thirds  of  a  quo- 
rum being  required  to  concur  in  any  treaty  made  by 
the  President  of  the^  United  States,  before  it  can  go 
into  effect.  So,  too,  the  Senate  acts  as  a  council  to 
the  President  in  regard  to  filling  offices,  for  the  Con- 
stitution provides  that  "he  shall  nominate,  and  by 
and  with  the  advice  and  consent  of  the  Senate  shall 
appoint,  ambassadors,  other  public  ministers,  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other 

29 


AMERICAN  LEGISLATURES 


officers  of  the  United  States,  whose  appointments  are 
not  otherwise  provided  for"  by  the  Constitution  and 
w^hich  offices  shall  be  established  by  law.  As  the 
country  has  grown,  it  has  become  impossible  for  the 
Senate  to  consider  all  appointments  to  office  or  even 
for  the  President  to  nominate  all  officers  directly,  and 
advantage  has  therefore  been  taken  of  the  further 
provision  of  the  Constitution  that  "Congress  may, 
by  law,  vest  the  appointment  of  such  inferior  officers 
as  they  think  proper  in  the  President  alone,  in  the 
courts  of  law,  or  in  the  heads  of  departments."  As 
a  result,  the  greater  number  of  inferior  officers  re- 
ceive no  congressional  confirmation.  If  a  nomination 
to  office  is  made  by  the  President  to  the  Senate  and  is 
rejected,  there  is  nothing  in  the  Constitution  to  pre- 
vent him  from  sending  the  same  name  in  again ;  but, 
in  practice,  this  is  almost  never  done,  unless  requested 
by  the  Senate  when  it  has  rejected  the  nomination 
under  a  misapprehension.  It  may  happen  that  the 
Senate  fails  to  act  upon  a  nomination  by  final  ad- 
journment and  that  the  term  of  the  incumbent  ex- 
pires before  another  session  convenes.  In  that  case,  a 
vacancy  in  the  office  occurs  which  may  be  filled  in  the 
same  manner  as  a  vacancy  arising  in  any  other  manner. 
The  President  has  ''power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at  the  end  of  their  next 
session."  The  Senate  also  has  the  special  power  of 
choosing  the  vice-president  of  the  United  States  from 
persons  receiving  the  two  highest  numbers  of  votes  in 
the  Electoral  College,  when  no  one  candidate  has  a 
majority  of  the  electoral  votes  for  that  office. 

30 


THE  CONGRESS  OF  THE  UNITED  STATES 

The  Senate  has  the  sole  power  to  try  all  impeach- 
ments, sitting  for  that  purpose  as  a  high  court,  with 
its  members  under  oath  or  affirmation  specially  taken. 
The  President,  vice-president,  and  all  civil  officers  of 
the  United  States  may  be  brought  before  this  court  on 
charges  of  treason,  bribery,  or  other  high  crimes  and 
misdemeanors,  which  unlawful  acts  need  not  be  statu- 
tory crimes.  When  the  President  of  the  United  States 
is  tried,  the  chief  justice  of  the  Supreme  Court  pre- 
sides, but  he  has  no  vote  in  the  final  decision.  No  per- 
son may  be  convicted  in  this  court  without  the  con- 
currence of  two  thirds  of  the  members  present.  Im- 
peachment is  a  cumbrous  remedy  for  evils  and  has 
been  used  only  eight  times.  The  most  famous  im- 
peachment trial  was  that  of  President  Andrew  John- 
son, the  most  recent  one  that  of  Judge  Swayne  of 
Florida  in  1905.  Military  and  naval  officers  are  not 
impeached  but  are  tried  by  courts  martial.  The  right 
to  bring  an  impeachment  resides  in  the  House  of  Rep- 
resentatives, as  a  survival  of  the  old  power  of  the 
House  of  Commons  to  act  as  the  Grand  Inquest  of 
the  State.  When  it  votes  to  impeach  an  officer,  it  also 
appoints  managers  of  the  trial,  who  act  as  prose- 
cutors on  behalf  of  the  House. 

Another  special  power  of  the  House  of  Representa- 
tives also  comes  to  it  from  the  English  House  of  Com- 
mons, namely,  the  exclusive  right  to  introduce  money 
bills,  or  those  which  provide  revenue  for  the  carrying 
on  of  the  government.  This  power  was  in  the  English 
House,  because  it  alone,  as  representative  of  the  peo- 
ple, could  grant  their  money  to  the  crown.  In  the 
United  States,  there  is  no  very  important  reason  for 

31 


AMERICAN  LEGISLATURES 


vesting  the  power  in  the  House  of  Representatives, 
and  as  the  Senate  may  amend  such  bills  to  an  un- 
limited extent,  the  power  is  not  a  very  important  one. 

A  third  power  belonging  to  the  House  of  Repre- 
sentatives alone  is  that  of  choosing  the  President  of 
the  United  States,  when  the  majority  of  votes  in  the 
Electoral  Colleges  are  not  cast  for  any  one  man.  In 
this  case,  the  House  votes  by  ballot  and  by  states,  each 
state  casting  one  vote  and  voting  for  one  of  the  three 
persons  receiving  the  highest  number  of  votes  in  the 
Electoral  Colleges.  For  this  purpose,  a  quorum  con- 
sists of  a  member  or  members  from  two  thirds  of  the 
states  and  a  majority  of  the  states  is  necessary  to  a 
choice.  In  1801  and  in  1825,  this  function  fell  to  the 
House. 

The  common  power  belonging  to  the  two  houses 
of  Congress  in  the  matter  of  elections  is  to  meet  in 
joint  convention  after  the  voting  of  the  Electoral 
Colleges  for  President  of  the  United  States,  at  which 
time  the  Constitution  provides,  the  president  of  the 
Senate  ''shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates, 
and  the  votes  shall  then  be  counted." 


32 


CHAPTER  II 

THE  HOUSE  OF  REPRESENTATIVES 

On  account  of  the  federal  nature  of  our  constitu- 
tional system,  Congress  has  next  to  nothing  to  do  with 
the  general  civil  law.  The  legislation  affecting  the 
ordinary  relations  between  individuals,  or  the  general 
rules  of  civil  action,  originates  in  the  state  legislatures, 
in  as  far  as  the  development  of  the  common  law  is  not 
left  entirely  to  the  courts.  While  Congress,  in  the 
exercise  of  such  powers  as  that  to  regulate  inter- 
state commerce,  may  originate  rules  by  which  people 
in  general  are  bound  in  their  business  relations,  such 
action  does  not  constitute  a  large  part  of  its  work, 
and  its  legislation  is  ordinarily  regulative  of  govern- 
mental agencies,  or  in  other  words,  administrative. 
The  most  cursory  examination  of  the  legislative  work 
in  any  session  of  Congress  will  reveal  the  extent  to 
which  its  attention  is  taken  up  with  matters  of  admin- 
istrative policy.  Consider,  for  example,  the  topics  of 
legislation  in  a  recent  Congress — the  Fifty-seventh; 
they  fairly  indicate  the  character  which  congressional 
action  usually  takes.  The  principal  work  of  that 
Congress  embraced  the  following  subjects:— the  crea- 
tion of  the  Department  of  Commerce  and  Labor,  the 

33 


AMERICAN  LEGISLATURES 


Elkins  anti-rebate  law,  the  provision  for  the  perma- 
nent census  bureau,  the  maintenance  of  Chinese  ex- 
clusion, the  beginnings  of  the  Panama  canal,  the 
establishment  of  civil  government  in  the  Philippines 
with  the  extension  of  the  gold  standard  thereto,  the 
creation  of  the  general  staff,  the  establishment  of  a 
national  militia  system,  irrigation  grants  for  the 
arid  lands  of  the  West,  the  augmenting  of  immigration 
restrictions,  the  anti-oleomargarine  act,  the  new  bank- 
ruptcy law,  the  repeal  of  the  Spanish  war-taxes,  the 
removal  of  the  duty  on  anthracite,  and  the  appropria- 
tion of  over  $1,500,000,000.  The  chief  business  of 
Congress  is  the  appropriation  of  money  for  the  work 
of  the  various  departments  of  government,  the  pro- 
viding of  ways  and  means  to  meet  this  expenditure, 
the  creation  of  new  administrative  agencies,  the  main- 
tenance of  the  national  defense  on  land  and  sea,  the 
control  of  the  various  wards  of  the  nation— the  In- 
dians and  the  people  of  the  territories  and  depend- 
encies—the regulation  of  economic  activities  as  far 
as  they  form  part  of  inter-state  commerce,  and  the 
administration  of  what  remains  to  the  United  States 
government  of  natural  wealth  in  forests  and  other 
public  lands. 

Congress  is  therefore  constantly  dealing  with  ad- 
ministrative policies,  and  it  is  inevitable  that  there 
should  be  a  struggle  for  influence  and  power  between 
the  President  and  Congress,  as  well  as  between  the 
two  houses.  New  channels  of  public  authority  are 
being  worn  at  the  present  time,  the  direction  of  which 
it  seems  beyond  human  contrivance  to  modify.  Men 
are  becoming  conscious  of  the  implied  logic  of  our 

34 


THE  HOUSE  OF  REPRESENTATIVES 

institutions,  and  are  beginning  to  feel  that  the  or- 
ganic life  of  government  and  the  struggle  of  political 
entities  for  predominance  cannot  be  confined  within 
the  dry  principles  of  the  theory  of  the  balance  of 
powers.  As  yet  it  is  by  no  means  clear  in  which  direc- 
tion the  center  of  gravity  of  our  political  system  is 
bound  to  settle.  It  is  indeed  still  believed  by  many  that 
it  will  be  possible  to  maintain  the  permanent  equi- 
librium between  the  various  departments  of  govern- 
ment; that  considering  the  existence  of  really  great 
powers  and  functions  in  each  of  the  branches,  it  will 
largely  depend  upon  the  personal  equation  as  to  where 
at  any  given  time  the  principal  authority  may  be  found. 
According  to  this  view  there  is  a  pendulum  swing  of 
political  influence,  but  no  branch  of  the  government 
can  hope  for  a  permanent  conquest  of  the  supreme 
power.  The  character  of  the  presidency  will  depend 
upon  whether  a  Jackson,  a  Tyler,  a  Johnson,  or  a 
Cleveland  is  the  incumbent  of  that  office;  and  the 
ability,  moderation,  and  political  mastery  of  the  lead- 
ers of  the  two  houses  will  have  a  great  influence  in 
determining  the  relative  position  of  these  bodies. 
This  view  of  the  continuous  balance  of  political  power, 
though  containing  much  truth,  nevertheless  rests  on 
a  superficial  foundation;  for  it  is  usually  based  on 
purely  legal  reasoning.  The  history  of  institutions 
shows  that  there  is  a  deeper  current  than  mere  per- 
sonal influence  or  legal  arrangement  which  deter- 
mines the  rise  and  fall  of  the  power  of  the  various 
organs  of  government.  It  is  rather  through  a  study 
of  the  manner  in  which  institutions  identify  them- 
selves with  social  forces  that  a  cud  may  be  found  for 

35 


AMERICAN  LEGISLATURES 


an  understanding  of  the  logic  of  institutional  develop- 
ment. In  proportion  as  an  institution  or  magistracy 
succeeds  in  making  itself  the  index  and  exponent  of 
the  most  pervading  economic  and  social  forces  within 
the  national  life,  its  influence  rises  or  falls.  It  is  also 
important  to  consider  how  the  various  interests  within 
the  nation  are  organized,  as  upon  this  depends  the 
effectiveness  of  the  support  which  they  are  able  to 
give  to  an  organ  which  primarily  represents  them. 
On  account  of  the  growing  intricacy  of  social  and 
economic  interests,  a  more  and  more  complex  system 
of  governmental  agencies— including  the  representa- 
tive bodies— is  being  developed.  It  will  therefore 
readily  be  seen  how  absolutely  inadequate  for  a  satis- 
factory judgment  of  the  real  distribution  of  political 
powers  among  the  various  organs  of  government  would 
be  the  merely  logical  analysis  of  their  constitutional 
functions,  without  a  consideration  of  the  social  and 
political  background  upon  which  the  exercise  of  these 
functions  rests.  Nevertheless  a  careful  analysis  of 
this  nature  must  constitute  the  first,  though  only  the 
introductory,  part  of  the  study  of  the  constant  struggle 
for  political  power  which  is  being  waged  between  the 
great  organs  of  state  life.  This  analysis  has  led  inter- 
preters to  varying  conclusions.  According  to  some, 
Congress  through  its  power  of  general  legislation  and 
of  specific  interference  with  the  administrative  de- 
partments, is  destined  to  become  the  virtual  depositary 
of  the  sovereign  authority ;  while  in  the  view  of  others 
the  magisterial  authority  of  the  President  places  him 
in  a  position  where  he  will  become  more  and  more 
the  central  force  in  the  government,  and  the  original 

36 


THE  HOUSE  OF  REPRESENTATIVES 

source  of  action  will  be  found  in  the  administrative 
departments. 

We  may  be  pardoned  for  reviewing  the  cardinal 
factors  in  the  situation,  although  they  are  of  course 
present  in  the  mind  of  every  student  of  the  Constitu- 
tion. Such  a  review  will  show  clearly  what  is  in- 
volved in  the  question  as  to  whether  a  permanent 
equilibrium  between  the  organs  of  government  is 
possible,  and  what  are  the  points  of  vantage  from 
which  each  of  them  may  defend  its  influence  and  im- 
portance. 

The  President's  position  is  to  some  extent  based  on 
his  veto  power,  which  makes  him  a  participant  in 
legislative  action,  but  the  real  source  of  his  import- 
ance lies  in  the  various  elements  which  constitute  his 
magisterial  authority.  The  latter  comprises  far  more 
than  the  routine  of  executing  such  laws  as  Congress 
may  make.  In  international  affairs  the  President's 
initiative  may  ordinarily  determine  the  course  of 
action  taken  by  the  national  government,  and  al- 
though the  President  cannot  declare  war  he  has  very 
frequently  the  opportunity  of  causing  it.  In  domes- 
tic affairs  his  control  of  the  scientific  and  technical 
branches  of  the  administration,  his  power  to  enforce 
the  laws,  including  the  provisions  of  the  Constitu- 
tion, give  him  a  discretionary  authority  the  implica- 
tions of  which  are  just  beginning  to  be  realized.  Re- 
cent political  campaigns  have  also  shown  that  the 
President  may  exercise  a  very  strong  influence  within 
and  through  the  party  organization. 

The  Senate,  in  the  eye  of  the  public  the  chief  com- 
petitor of  the  President  for  predominant  authority, 

37 


'/^^^^^^ 


AMERICAN  LEGISLATURES 


has  also  a  formidable  array  of  powers  together  with 
great  advantages  of  organization.  It  is  a  permanent 
body,  large  enough  to  be  representative  of  many  in- 
terests, small  enough  to  be  permeated  by  an  intense 
feeling  of  solidarity;  through  its  power  over  treaties 
it  exerts  a  strong  influence  over  the  conduct  of  for- 
eign affairs;  it  shares  in  the  appointment  of  high 
officials,  including  the  justices  of  the  Supreme  Court ; 
it  exercises  a  detailed  supervision  of  administrative 
departments;  and  its  relations  to  the  House  give  it 
ordinarily  a  controlling  influence  over  appropriations 
and  general  legislation.  It  has  a  close  organization, 
flexible,  subtle  and  powerful  for  action.  Its  rules  of 
*' courtesy"  give  prominence  and  dignity  to  its  indi- 
vidual members.  It  has  in  the  recent  past  enjoyed 
great  political  power  in  the  party  organizations,  en- 
abling its  members  or  groups  of  them  to  make  Presi- 
dents and  members  of  the  House  of  Representatives. 
Its  influence  is  increased  by  the  great  material  power 
enjoyed  by  some  among  its  members,  and  by  the  inti- 
mate connection  of  senators  with  such  economic  inter- 
ests as  insurance,  railways,  express  companies,  mining 
and  industrial  corporations. 

Compared  with  such  powerful  organs  as  the  Execu- 
tive and  the  Senate,  the  House  of  Representatives  at 
first  sight  appears  in  a  position  of  considerable  disad- 
vantage. However,  on  account  of  direct  and  frequent 
elections  by  the  people,  it  may  claim  importance  as 
affording  a  just  index  of  popular  feeling  which  can- 
not safely  be  disregarded ;  moreover,  the  concentrated 
power  of  the  speakership  offers  great  opportunities  to 
a  leader  of  real  ability  for  influencing  the  conduct  of 

38 


THE  HOUSE  OF  REPRESENTATIVES 

public  affairs.  After  a  more  careful  analysis  of  the 
political  powers  of  the  House  and  of  the  machinery 
there  provided  for  producing  legislative  action,  we 
shall  be  in  a  position  to  judge  more  intelligently  of 
the  true  tendencies  of  political  development  and  of 
the  chances  whether  any  one  organ  of  government 
may  be  able  to  draw  into  its  hands  all  the  principal 
political  powers.^ 

The  history  of  the  House  has  brought  out  very 
clearly  the  inherent  weakness  of  government  by  dis- 
cussion. Created  at  a  time  when  men  were  afraid  of 
executive  discretion,  our  government  is  constituted 
in  such  a  way  as  to  give  Congress  a  better  opportunity 
for  exercising  power  than  any  other  parliament,  with 
the  exception  of  that  of  Great  Britain,  has  ever  pos- 
sessed. The  belief  of  the  nation  in  government  by 
discussion  remained  very  strong  throughout  the 
greater  part  of  the  nineteenth  century.  Men  were 
elected  as  representatives  because  they  could  talk — 
selected  indeed  almost  entirely  from  a  profession 
trained  in  public  discourse ;  and  discussion  of  political 
problems  was  for  a  long  time  the  main  intellectual 

^As  it  would  be  impossible  in  this  place  to  give  a  detailed 
account  of  the  historic  development  of  procedure  in  Congress, 
familiarity  with  the  results  presented  by  Mr.  Bryce  in  his 
** American  Commonwealth,"  by  President  Woodrow  Wil- 
son (*' Congressional  Government"),  Miss  Follett  ("The 
Speaker"),  and  Dr.  McConachie  (''Congressional  Commit- 
tees"), is  presupposed  by  the  author,  who  will  confine  his  at- 
tention principally  to  the  tendencies  which  have  revealed  them- 
selves more  clearly  since  these  books  were  written,  and  to  an  ac- 
count of  the  present  political  situation  in  the  House  of  Repre- 
sentatives and  the  Senate. 

39 


AMERICAN  LEGISLATURES 


interest  of  the  nation.  And  yet  in  proportion  as  eco- 
nomic life  became  diversified  and  complicated,  gov- 
ernment by  deliberation  began  to  fail.  The  very 
machinery  of  government  by  discussion  was  constantly 
used  by  powerful  private  interests  for  the  purpose  of 
obtaining  special  franchises  and  other  privileges,  and 
of  defeating  any  general  legislation  that  might  be  un- 
favorable to  them.  The  spirit  of  institutions  thus 
suffered  a  radical  change  and  the  freedom  of  parlia 
mentary  discussion  was  gradually  more  and  more 
circumscribed. 

The  development  outlined  above  has  taken  place 
more  or  less  in  all  the  legislative  bodies  of  the  nation. 
In  the  two  houses  of  Congress  different  aspects  of 
this  tendency  revealed  themselves.  For  in  the  Senate 
discussion  frequently  became  trivial  and  meaningless 
on  account  of  its  very  abundance,  and  the  narrower 
interests  there  represented  found  the  lack  of  parlia- 
mentary restrictions  admirably  adapted  to  their  spe- 
cial purposes.  Whereas,  in  the  House,  unwieldy  and 
loosely  organized  as  it  was  until  very  recent  times, 
frequent  and  immoderate  obstruction  rendered  al- 
most impossible  the  continuance  of  the  legislative  busi- 
ness. The  House  therefore  decided,  or  rather  circum- 
stances decided  for  the  House,  that  power  must  be 
concentrated  in  the  hands  of  a  few  leaders.  The 
theory  of  democracy  is  favorable  to  a  dispersion  of 
power ;  concentrated  authority  is  feared ;  power  must 
be  divided  among  a  large  number  of  officials  or  agen- 
cies; and  great  reliance  is  placed  upon  a  system  of 
checks  and  balances.  It  has,  however,  become  clear 
that  government  is  not  a  matter  of  mathematical 

40 


THE  HOUSE  OF  REPRESENTATIVES 

computation,  but  a  matter  of  life  and  action,  and 
that  a  governmental  organ  whose  efficiency  has 
been  impaired  by  the  dispersion  of  authority  will 
instinctively  seek  an  agency  through  which  after  all 
it  can  act,  and  will  endow  that  agency  with  almost 
absolute  power.  The  minute  division  of  authority  in 
governmental  organs  may  therefore  be  viewed  as  one 
aspect  of  that  political  disintegration  which  inevitably 
leads  to  some  form  of  absolute  dictatorship. 

The  history  of  the  House  exhibits  two  contradictory 
tendencies.  Following  the  impulse  of  democracy,  ac- 
cording to  which  every  member  should  share  as  far  as 
possible  in  power,  the  business  of  the  House  was  grad- 
ually dispersed  more  and  more  among  an  increasing 
number  of  committees.  But  from  the  anarchy  thus 
resulting  no  escape  seemed  possible,  except  through 
the  creation  of  a  highly  centralized  authority.  Even  in 
1885,  when  a  large  part  of  the  work  of  the  Committee 
on  Appropriations  was  distributed  among  a  number 
of  minor  committees,  Blaine  and  Randall,  as  speak- 
ers, had  already  made  use  of  the  power  to  appoint 
committees  and  to  recognize  members  with  the  distinct 
purpose  of  controlling  legislative  action.  Carlisle, 
too,  was  soon  to  follow  a  policy  of  even  more  distinct 
leadership  in  legislative  matters.^  Mr.  Reed  com- 
pleted the  work  of  his  eminent  predecessors,  and  gave 
the  House  an  organization  which  invested  the  major- 
ity with  power  to  act  at  any  time,  but  which  was  also 
the  climax  of  centralized  authority  and  caused  the 

^  E.g.  In  1887,  he  refused  to  recognize  any  member  desiring 
to  bring  up  a  bill  for  the  repeal  of  certain  internal  revenue 
taxes. 

•    41 


AMERICAN  LEGISLATURES 


repression  of  the  individual  member  into  a  very  nar- 
row sphere.  Experience  had  shown  that  such  a  close 
hierarchy  of  leadership  was  necessary  to  prevent  a 
state  of  affairs  where  irresponsible  discussion  would 
make  responsible  action  impossible,  since  the  right  of 
discussion  was  constantly  used  by  individual  interests 
for  purely  dilatory  purposes. 

It  is  difficult  to  dissociate  Mr.  Reed's  rulings  from 
the  influence  of  his  powerful  personality.  He  was 
one  of  those  rare  men  whose  constant  command  of  the 
situation  and  whose  analytical  foresight  enable  them 
to  turn  the  smallest  incident  to  advantage  in  develop- 
ing their  power.  His  action  was  always  constructive, 
never  haphazard.  He  foresaw  the  potentialities  of 
new  rules  and  the  exact  scope  of  their  action;  and 
when  he  had  established  them,  he  constantly  admin- 
istered them  in  such  a  manner  that  they  yielded  a 
permanent  increase  to  the  power  of  the  Speakership. 
His  power,  however,  rested  not  so  much  upon  the 
new  rules  which  he  established,  as  upon  the 
harmony  and  consistency  which  he  worked  out 
between  these  and  the  older  rules  which  he 
had  inherited  from  his  predecessors,  thus  cre- 
ating a  coherent  system  which  at  all  points  sup- 
ported the  supremacy  of  the  speaker.  Nor  were  the 
specific  changes  which  he  introduced,  as  is  often  al- 
leged, entirely  revolutionary,  and  the  product  of  his 
own  constructive  imagination.  For  though  bold  in 
independent  action,  he  also  had  the  extreme  caution 
of  statesmanship,  and  in  adopting  innovations  he 
confined  himself  to  those  which  were  clearly  neces- 
sary to  complete  the  organic  evolution  of  an  effective 
political  leadership  of  the  House. 

42 


THE  HOUSE  OF  REPRESENTATIVES 

The  practice  of  counting  a  quorum  was  indeed  con- 
trary to  the  more  recent  precedents  in  the  House. 
But  Mr.  Reed  argued  that  as  the  presence  of  a  quorum 
had  often  been  tacitly  assumed  when  fewer  than  a 
quorum  had  voted,  it  would  be  permissible  openly  to 
ascertain  the  presence  of  a  quorum  when  a  less  num- 
ber had  voted  and  thus  to  establish  the  validity  of  the 
action.^  Mr.  Reed's  ruling  in  this  matter  was  sup- 
ported also  by  general  parliamentary  law,  and  by 
the  practice  of  many  state  legislatures.^  Lieutenant- 
Governor  Hill,  of  New  York,  had  put  the  matter  in 
the  following  convincing  language:  ''If  a  senator  is 
in  fact  present,  his  refusal  to  vote,  which  is  a  viola- 
tion of  his  duty,  does  not  make  him  absent  in  a 
parliamentary  sense."  The  House  of  Representatives 
itself  had  some  earlier  precedents  favorable  to  Mr. 
Reed's  position.  The  legal  correctness  of  his  ruling 
could  of  course  not  be  doubted  after  his  decision  had 
been  sustained  by  the  House,  and  subsequently  by 
the  courts.^     Nor  can  his  act  be  called  essentially 

^  See  ruling  in  Hinds,  *  *  Parliamentary  Precedents, ' '  sec.  242. 

^E.g.  Massachusetts,  New  York,  and  Tennessee.  In  Penn- 
sylvania, constructive  absence  was  reduced  to  an  absurdity  by 
a  member  of  the  minority,  who  happened  to  be  in  the  chair, 
deciding  that  he  himself  was  not  present.  Thomas  B.  Eeed, 
"The  Limitations  of  the  Speakership,''  N.  Am.  Kev.,  150:388. 

» U.  S.  V.  Ballin,  144  U.  S.,  1.  * '  The  Constitution  has  pre- 
scribed no  method  of  making  this  determination,  and  it  is 
therefore  within  the  competency  of  the  House  to  prescribe  any 
method  which  shall  be  reasonably  certain  to  ascertain  the  fact. 
It  may  prescribe  answer  to  roll-call  as  the  only  method  of 
determination;  or  require  the  passage  of  members  between 
tellers  and  their  count  as  the  sole  test,  or  the  count  of  the 
speaker,  or  the  clerk,  and  an  announcement  from  the  desk  of 
the  names  of  those  present. " 

43 


AMERICAN  LEGISLATURES 


revolutionary,  because  it  was  part  of  a  general  organic* 
movement  towards  the  constitution  of  a  highly  effi- 
cient, centralized  authority  in  the  House. 

Mr.  Reed's  ruling  through  which  he  excluded  dila- 
tory motions  was  based  upon  certain  precedents  in  the 
House  of  Representatives  itself,  although  he  exercised 
the  power  more  frequently  and  with  greater  rigor 
than  any  previous  speaker.  These  rulings  were  avow- 
edly designed  to  make  majority  action  possible,  and 
to  prevent  inordinate  delay.  But  since  the  majority, 
as  a  matter  of  fact,  could  act  only  through  the  speaker 
and  the  other  leaders  of  the  hierarchy,  the  addition 
of  these  rules  brought  a  great  accession  of  authority 
to  the  speaker.  Mr.  Reed  also  used  all  the  other 
powers  developed  by  his  predecessors  with  great  ef- 
fect, such  as  the  appointment  of  committees,  the  con- 
trol exercised  through  the  Committee  on  Rules,  and 
the  power  of  recognition.^  All  these  powers  were 
used  with  the  distinct  aim  of  impressing  the  speaker's 
legislative  policy  upon  the  House,  and  of  preventing 
action  on  measures  which  to  him  appeared  unwise  or 
unnecessary.  ^ 

Thus  if  Has  come  about  that  the  majority  itself  is 
bound  by  the  rules  designed  to  make  its  action  possi- 
ble. The  House  acts  through  its  leaders.  Independ- 
ently of  them  the  individual  members  can  accomplish 
next  to  nothing.  Nor  does  the  House  exercise  a  direct 
influence  over  the  deliberations  of  its  committees.  Thus 
in  1898,  it  was  ruled  that  a  motion  directing  a  commit- 
tee to  report  upon  a  certain  matter  was  out  of  order.^ 

*  E.g.  He  refused  to  recognize  any  one  desiring  to  bring  up  a 
free  silver  bill. 
''Hinds,    ** Parliamentary    Precedents,"    sec.    698. 

44 


THE  HOITSE  OF  REPRESENTATIVES' 

The  powers  of  the  speaker  have  been  greatly  aug- 
mented through  the  development  of  the  Committee 
on  Rules.  This  body  was  at  first  comparatively  unim- 
portant, being  a  select  committee  appointed  for  the 
purpose  of  reporting  on  the  rules  at  the  beginning  of 
each  Congress.  But  in  1880,  it  became  a  standing 
committee,  and  then  gradually  extended  its  functions 
so  as  to  embrace  not  only  the  making  but  also  the 
suspension  and  the  administration  of  rules.  In  1891, 
it  was  granted  the  right  to  report  at  any  time,  and 
two  years  later  was  given  the  unique  privilege  of 
meeting  even  during  the  sessions  of  the  House.  In 
the  latter  year,  too,  the  important  ruling  was  made 
that  the  committee  might  report  a  special  order  even 
though  not  specially  referred  to  it.  The  question 
whether  a  resolution^  reported  by  the  Committee  on 
Rules  is  to  be  considered  by  the  House  will  not  be  put 
by  the  speaker,  on  the  ground  that,  as  such  resolution 
itself  proposes  the  consideration  of  a  bill,  there  would  vV" 
be  an  unnecessary  doubling  of  motions,  were  the  above 
questions  allowed  to  be  raised.^  The  reports  of  this 
committee  are  therefore  peculiarly  protected  against  -^ 
dilatory  tactics.  The  Committee  on  Rules  may  go  so 
far  as  to  propose  for  consideration  a  measure  not  yet 
reported  by  the  committee  to  which  it  had  been  re-  (J/» 
f erred,  so  that  in  effect  a  committee  may  thus  be  dis- 
charged from  a  matter  pending  before  it.^ 

The  essence  of  the  power  of  the  Committee  on  Rules 
lies  in  the  fact  that  it  has  the  right  to  report  at  any 
time  a  resolution  that  a  bill  or  other  measure  be  made 

^Relating  to  the  order  of  business. 

^'See  Hinds,   "Parliamentary  Precedents,"  sees.   831-2. 

"Hinds,   "Parliamentary  Precedents,"   see.   1542. 

45 


AMERICAN  LEGISLATURES       cy^uAxy 

a  special  order  for  a  certain  day.  As  nearly  all  the 
important  measures  before  the  House  of  Representa- 
tives are  dealt  with  under  special  orders,  the  Com- 
mittee on  Rules  has  therefore  in  its  hands  practically 
the  complete  control  of  the  course  of  business  in  the 
House.  It  determines  what  measures  shall  be  dis- 
cussed, how  much  time  is  to  be  given  to  them,  and  in 
what  order  they  are  to  be  brought  up.  The  resolu- 
tions reported  by  the  Committee  on  Rules  are  of 

vcourse  ineffective  unless  adopted  by  the  House,  but 
\^  the  majority  in  the  House  can  act  only  through  its 

^leaders,  such  resolutions  are  ordinarily  adopted  as  a 
matter  of  course.  This  powerful  committee,  how- 
ever, is  only  an  appendage  to  the  speakership,  and  its 
prominence  is  due  to  the  fact  that  the  speaker  himself 
is  a  member  of  it.  When,  through  the  dispersive 
tendencies  already  noted,  the  business  of  Congress 
had  become  more  and  more  broken  up  and  divided 
among  an  increasing  number  of  committees,  concen- 
tration became  necessary;  and  it  is  but  natural  that 
the  committee  of  which  the  speaker  was  a  member 
and  whose  functions  were  not  confined  to  any  particu- 
lar class  of  business,  but  dealt  with  the  general  rules 
of  the  House,  should  draw  to  itself  the  power  of  con- 
trolling the  temporary  modification  of  such  rules, 
and  thereby  of  controlling  the  congressional  business 
itself. 

Considering  the  great  power  of  the  Committee  on 
Rules  and  the  fact  that  it  is  but  a  satellite  to  the 
speakership,  it  is  believed  by  many  that  its  develop- 
ment represents  too  great  a  centralization  of  author- 
ity.    Suggestions    have    therefore    repeatedly    been 

46 


THE  HOUSE  OF  REl^HE  SENT  ATI  VES 

made  for  a  modification  of  its  structure.  It  has  been 
urged  that  the  election  of  the  committee  by  the  House 
itself  would  insure  greater  individuality  on  the  part 
of  the  members  elected,  so  that  they  would  be  likely 
to  represent  more  fairly  the  different  groupings  of 
opinions  and  interests  in  the  House.  Such  an  attempt 
to  substitute  an  aristocracy  for  a  dictatorship  would 
at  first  sight  seem  to  promise  well  for  the  dignity  and 
efficiency  of  the  House.  It  can  scarcely  be  claimed 
that  the  members  whom  the  speakers  have  associated 
with  themselves  on  this  committee  from  time  to  time, 
have  always  or  even  generally  been  men  of  broad  and 
representative  statesmanship;  and  if  the  committee 
could  be  transformed  into  some  resemblance  to  the 
British  Cabinet,  a  representative  council  of  the  ablest 
leaders  of  the  House,  the  latter  body  would  undoubt- 
edly gain  much  in  self-respect  and  real  influence.  It 
is  however  questionable  whether  such  a  result  could 
be  gained  through  the  method  of  election.  Under  the 
present  system  the  members  of  the  committee  are 
selected  by  the  speaker  in  accordance  with  the  general 
principle  of  leadership  in  the  House,  that  is,  less  on 
account  of  striking  ability  and  mastery  of  public 
questions  than  because  of  long-continued  experience 
in  the  technique  of  House  and  committee  procedure. 
The  selection  is  indeed  far  from  being  governed  by 
caprice  or  by  a  mere  desire  of  obtaining  willing  in- 
struments for  the  speaker's  purpose,  although  of 
course  he  is  not  likely  to  select  men  violently  opposed 
to  him  in  political  views.  If  the  matter  were  to  be 
decided  through  action  by  the  House,  the  House  would  ; 
either  have  to  follow  the  system  now  in  vogue,  which 
.    47 


AMERICAN  LEGISLATURES 


is  largely  one  of  seniority  promotion ;  or  it  would  have 
to  exercise  the  very  difficult  function  of  selecting  from 
among  the  younger  men  those  who  could,  without 
having  been  throughly  tried,  be  trusted  with  leader- 
ship in  the  intricate  business  of  legislation.  The  mere 
statement  of  the  alternative  is  sufficient  to  indicate 
how  unsafe  it  would  be  to  make  confident  predictions 
as  to  the  result  to  be  expected  from  a  change  in  the 
method  of  selection.  Another  part  of  tHe  committee 
for  reform  contemplates  the  increase  of  the  committee 
so  that  it  should  contain  at  least  five  members  of  the 
majority.  This  would  clearly  make  the  committee 
more  representative,  and  it  would  also  enable  the 
speaker  to  utilize  the  services  of  men  of  great  ability 
who  have  not  yet  served  long  enough  in  the  House  to 
secure  the  patent  of  leadership  under  present  condi- 
tions. The  most  serious  objection  to  the  suggestion 
lies  in  the  fact  that  the  functions  of  the  committee 
are  such  as  require  quick  and  decisive  action.  The 
difl:usion  of  business  in  the  House  calls  for  a  heroic 
remedy,  and  the  time  does  not  yet  seem  ripe  for  the 
substitution  of  a  larger  and  more  representative  body 
in  the  place  of  the  two  majority  members  who  now 
act  virtually  as  lieutenants  of  the  speaker. 

Let  us  now  consider  the  most  recent  development 
of  practice  and  procedure  in  the  House  of  Repre- 
sentatives. When  Mr.  Reed  returned  to  the  speakership 
in  1895,  the  use  which  he  had  made  of  his  power  dur- 
ing his  earlier  term  of  office  had  practically  been  jus- 
tified by  his  political  opponents  who  had  so  violently 
criticized  his  conduct  at  that  time.     Themselves  in 

48 


\<^ 


THE  HOUSE  OF  REPRESENTATIVES 

power  as  the  majority  in  the  House,  they  had  been 
forced  to  recognize  that  the  transaction  of  business 
required  an  intense  concentration  of  authority  in  the 
hands  of  the  speaker  and  of  the  Committee  on  Rules. 
On  account  of  the  political  prominence  which  their 
strenuous  opposition  had  given  to  the  rule  of  the 
Fifty-first  Congress  that  no  dilatory  motion  shall  be 
entertained  by  the  speaker,  they  did  not  consider  it 
advisable  to  re-enact  this  rule  during  the  two  Demo- 
cratic terms.  But  filibustering  was  so  rampant,  and 
the  efficient  action  of  the  House  of  Representatives 
was  so  seriously  impeded  by  obstructionists,  that  the 
leaders  of  the  Democratic  party  tacitly  recognized 
the  justification  of  this  rule  and  ceased  their  opposi- 
tion to  it  when  it  was  re-introduced  by  the  Republi- 
cans in  the  Fifty-fourth  Congress.  The  rule  respect- 
ing the  quorum  was  continued  in  the  Fifty-second 
Congress  in  a  modified  form,  maintaining  its  princi- 
ple, but  having  the  count  made  by  tellers  from  both 
parties,— a  merely  formal  change.  Mr.  Reed,  there- 
fore, returned  to  the  speakership  with  a  great  acces- 
sion of  influence,  and  when  two  years  later  his  party 
was  completely  successful  at  the  polls  in  the  presi- 
dential election,  he  reached  the  zenith  of  his  career 
as  a  great  party  leader.  The  extent  of  his  authority 
is  apparent  from  his  action  during  the  short  session 
of  1897.^    The  extra  session  had  been  called  for  the 

*'*The  Nation'*  of  March  8,  1897,  expresses  the  growing 
consciousness  of  the  speaker's  power,  in  the  following  words: 
"The  speaker's  control  over  legislation  is  now,  under  the 
rules  and  practices  of  the  House,  almost  absolute.  .  .  .  The 

*  49 


AMERICAN  LEGISLATURES 


purpose  of  revising  the  tariff.  The  Dingley  bill,  pre- 
pared in  anticipation  of  the  extra  session,  a  highly 
important  measure  which  affected  every  industrial 
pursuit  in  the  country,  was  introduced  and  forced 
through  the  House  within  two  weeks.  Only  the  most 
superficial  discussion  was  had  and  the  measure  was 
sent  to  the  Senate,  where,  as  is  usually  the  case,  it  was 
subjected  to  careful  scrutiny  and  a  large  amount  of 
modification.  Speaker  Reed  had  not  appointed  the 
standing  committees  of  the  House  at  the  beginning  of 
the  session,  and  during  all  the  months  when  the  Ding- 
ley  bill  was  being  dissected  in  the  Senate  he  kept  the 
House  unorganized  for  business,  and,  holding  the 
whip-hand  over  it,  allowed  no  important  action  what- 
ever to  be  taken.  The  delay  in  committee  appoint- 
ments secured  for  him  the  absolute  mastery  of  the 
situation.  He  prevented  the  House  from  voting  on 
the  Cuban  Belligerency  resolution  of  the  Senate  as 
well  as  on  the  Nicaragua  Canal  bill,  although  it  is 
very  probable  that  these  measures  would  have  been 
passed  by  large  majorities,  as  the  clamor  for  their 
consideration  was  great  and  pertinacious.  But  the 
members  of  the  House  did  not  dare  to  brave  the 
speaker  at  this  time,  for  so  long  as  the  committees  had 
not  yet  been  appointed  the  power  of  punishment  and 
reward  was  still  in  his  hands.    Had  Reed  merely  been 

people  know  this  now.  The  time  has  passed  when  the  speaker 
could  exercise  his  vast  power  unsuspected.  Nor  can  he  shirk 
his  responsibility.  No  bill  can  pass  the  House  without  his 
passive  approval,  and  that  in  effect  is  the  same  thing  as  active 
advocacy.  It  is  Speaker  Keed  more  than  any  other  man  or  set 
of  men  who  will  give  us  our  new  tariff. ' ' 

50 


THE  HOUSE  OF  REPRESENTATIVES 

a  leader  of  the  House,  a  successful  revolt  might  have 
been  organized  against  him  at  this  time,  but  he  was 
also  a  leader  of  his  party.  His  political  character  and 
the  policies  for  which  he  stood  had  been  vindicated 
and  he  seemed  resistless,  second  in  power  to  none  with 
the  possible  exception  of  the  President.  When  it  was 
attempted  to  test  the  feeling  of  the  House  by  moving 
a  resolution  calling  upon  the  speaker  to  appoint  the 
committees,  he  was  supported  not  only  by  the  solid 
phalanx  of  his  own  party,  but  even  by  more  than 
one-half  of  the  members  of  the  minority.  It  was  only 
at  the  end  of  the  session,  on  July  24,  when  the  Dingley 
bill  had  become  a  law,  and  when  the  measures  objec- 
tionable to  the  speaker  had  been  abandoned,  that  the 
make-up  of  the  committees  was  finally  announced.  It 
is  true  that  in  this  matter  Mr.  Reed  could  appeal  to 
the  precedent  estajblished  by  Colfax  and  Blaine,  in 
the  sessions  of  1867  and  1871.  The  situation  at  those 
times  was,  however,  very  different,  and  the  delay  in 
committee  appointment  did  not  imply  such  over- 
shadowing power  on  the  part  of  the  speaker. 

In  the  year  after  this  great  display  of  parlia- 
mentary authority,  the  House,  as  it  does  at  times, 
broke  away  from  the  strict  control  of  the  speaker. 
Reed  himself  seemed  to  hold  the  reins  somewhat 
laxer.  He  had  no  such  definite  policy  to  establish  as 
in  1897;  moreover,  the  demoralizing  influence  which 
war  always  exercises  on  political  action,  seems  to  have 
affected  the  House,  making  it  less  inclined  to  regular 
discipline.  The  House  refused  to  follow  the  views 
of  the  speaker  on  the  question  of  Cuban  belligerency, 
the  fifty  million  war  appropriation,  and  the  ultimatum 
-  51 


AMERICAN  LEGISLATURES 


to  Spain.  In  the  matter  of  the  annexation  of  Hawaii 
the  speaker  found  himself  in  a  feeble  minority  and 
left  the  chair  when  the  vote  on  the  resolution  came 
up.  This  action  of  the  House  shows  that  in  a  time  of 
unusual  excitement  it  will  not  follow  the  leadership 
of  a  speaker  who  desires  to  put  a  curb  on  its  zeal  for 
action.  When  such  passions  come  into  play,  a  speaker 
who  does  not  desire  to  ride  the  whirlwind  is  at  a  dis- 
advantage; the  normal  control  is  destroyed  and  for  a 
time  unrestrained  impulse  reigns  supreme.  Com- 
pared with  the  British  prime  minister,  the  speaker  is 
at  a  disadvantage,  because,  when  he  does  lose  control 
of  the  House,  it  is  not  open  to  him  to  appeal  to  the 
electorate  at  large. 

The  election  of  Speaker  Henderson  in  1899,  which 
was  uncontested,  is  of  great  importance  as  indicating 
the  hold  which  the  hierarchical  principle  had  obtained 
in  the  House.  Mr.  Henderson  had  served  as  a  con- 
gressman for  twenty  years,  and  had  been  a  member 
of  the  Committees  on  Judiciary  and  on  Rules.  He 
w^as  helped  somewhat  also  by  sectional  considerations, 
for  there  had  been  no  Western  speaker  since  Mr. 
Keifer,  and  Henderson  had  the  added  distinction  of 
being  the  first  speaker  to  be  chosen  from  the  states 
beyond  the  Mississippi.  But  the  determining  influ- 
ence after  all  was  to  be  found  in  his  long  service,  and 
in  his  identification  with  the  new  power  of  the  speaker 
and  of  the  Committee  on  Rules.  To  succeed  Mr.  Reed 
was  not  an  easy  matter,  the  instrument  which  he  had 
forged  could  be  wielded  only  by  a  man  of  high  ability 
and  power.  But  the  regime  of  Mr.  Henderson  was 
unnecessarily  weak,  especially  as  far  as  the  relations 

52 


THE  HOUSE  OF  REPRESENTATIVES 

of  the  House  to  the  Senate  were  concerned.  His  in- 
cumbency of  office,  however,  marks  another  point  in 
the' advance  of  the  power  of  the  Committee  on  Rules. 
On  February  27,  1902,  the  committee  reported  that 
the  pending  bill  for  the  repeal  of  the  Spanish  War 
taxes  should  be  voted  on  without  amendment.  This 
was  done  in  order  to  shut  out  such  measures  as  a  bill 
for  the  removal  of  duties  on  steel  and  iron,  which  had 
an  excellent  chance  of  passing  as  an  amendment  to 
the  repeal  measure.  This  precedent  shows  the  extent 
of  the  power  of  organization  in  the  House.  An  amend- 
ment ought  to  stand  on  a  higher  plane  than  mere 
general  criticism  in  debate,  beca^use  it  ordinarily  con- 
tains in  itself  a  specific  and  definite  proposal.  To 
rule  out  the  right  of  amendment  was  further  to  emas- 
culate all  discussion  and  to  render  it  purely  perfunc- 
tory. This  was  pointed  out  by  the  leaders  of  the 
opposition  who  recorded  a  strong  protest,  but  passed 
over  the  bill  itself  in  muteness,  disdaining  to  join  in 
a  purely  academic  discussion. 

There  were  a  few  other  interesting  cases  of  the  use 
of  centralized  authority  in  the  House  during  the 
Henderson  regime.  Near  the  end  of  the  last  session 
of  the  Fifty-seventh  Congress  an  extreme  use  was 
made  of  the  power  of  the  speaker  to  note  a  quorum 
present.  In  dealing  with  a  St.  Louis  election  case, 
Mr.  Dalzell,  occupying  the  chair,  amid  the  protests 
of  the  minority,  considered  as  present  men  who,  it  is 
claimed,  were  not  even  in  the  building.  Again,  in 
response  to  the  dilatory  tactics  and  filibustering  on 
the  part  of  the  minority,  on  February  27, 1903,  the  fol- 
lowing rule  was  adopted:  *'That  it  shall  be  in  order 
.    53 


AMERICAN  LEGISLATURES 


to  take  from  the  speaker's  table  any  general  appro- 
priation bill  returned  with  the  Senate  amendments, 
and  such  amendments  having  been  read,  the  question 
shall  at  once  be  taken  without  debate  or  intervening 
motion  on  the  following  question:  'Will  the  House 
disagree  to  said  amendments  en  bloc  and  ask  a  con- 
ference with  the  Senate?'  And  if  this  motion  shall 
be  decided  in  the  affirmative,  the  speaker  shall  at  once 
appoint  the  conferees,  without  the  intervention  of 
any  motion. ' ' 

But  in  1902,  on  the  question  of  reciprocity  with 
Cuba,  the  House  organization  sustained  a  serious  re- 
verse. In  Committee  of  the  Whole,  on  April  18,  after 
a  spirited  discussion,  an  amendment  was  introduced 
repealing  the  differential  on  sugar.  Mr.  Sherman, 
as  chairman,  ruled  that  the  amendment  was  not  ger- 
mane, giving  his  reasons  at  length.  By  a  coalition  of 
the  Democrats  and  the  beet-sugar  group  of  Republi- 
cans, the  decision  of  the  chair  was  overruled  by  a 
vote  of  171  to  130.  A  state  of  pandemonium  fol- 
lowed, while  the  opposition  celebrated  its  victory  by 
prolonged  cheering.  A  few  minutes  later,  on  a  not 
dissimilar  amendment  repealing  the  differential  on 
hides,  the  chair  repeated  his  previous  ruling  and  it 
was  this  time  upheld  by  a  vote  of  183  to  70.  Later  in 
the  day  when  the  bill  came  before  the  House,  the 
coalition  victoriously  added  its  sugar  differential 
amendment  to  the  bill  by  a  vote  of  199  to  105.  In 
the  minority  on  this  question  were  such  prominent 
leaders  as  Messrs.  Cannon,  Dalzell,  Grosvenor,  Payne, 
and  Hemenway. 

The  election  of  Mr.  Cannon  was  predetermined  as 
54 


THE  HOUSE  OF  REPRESENTATIVES 

mucli  as  that  of  Mr.  Henderson  had  been.  He  had 
even  a  longer  service  to  his  credit,  having  been  in 
regular  attendance  for  thirty  years,  and  having  from 
the  obscurity  of  an  ordinary  rural  member  worked 
his  way  into  a  position  of  leadership,  through  native 
shrewdness  and  diligent  attention  to  the  business  of 
the  House.  Mr.  Cannon  was  elected  as  a  protagonist 
against  the  undue  pretensions  of  the  Senate.  He  had 
repeatedly  expressed  his  impatience  with  the  methods 
of  the  other  house.  Upon  his  election  he  immediately 
took  up  the  cudgel  against  senatorial  encroachment, 
the  success  of  which  efforts  we  shall  consider  in  a 
later  chapter.  During  the  Fifty-eighth  Congress,  the 
House  at  times  became  very  unruly.  In  1905,  the 
organization  was  voted  down  twice.  But  while  his 
followers  had  thus  departed  from  the  strict  dictates 
of  party  discipline,  it  must  be  confessed  that  Mr. 
Cannon  had  made  a  precedent  for  such  a  breaking  of 
party  ties  and  disregard  for  party  responsibilities, 
by  appealing  to  Democrats  to  assist  him  in  passing 
the  navy  appropriation  bill,  when  a  deficiency  of 
Republican  votes  threatened  that  measure.  The 
further  breaking  down  of  party  differences  during 
the  first  session  of  the  Fifty-ninth  Congress,  when  an 
important  measure  like  the  railway  rate  bill  was 
passed  with  only  seven  dissenting  votes,  had  the  effect 
of  making  the  resistance  to  the  speaker 's  authority 
more  general  and  better  organized  than  it  had  ever  been 
since  the  speakership  had  developed  its  great  author- 
ity. The  revolt  against  the  speaker's  policy  in  the 
matter  of  the  statehood  bill  and  of  the  Philippine 
tariff,  became  at  times  so  formidable  that  it  was 
,       .    55 


AMERICAN  LEGISLATURES 


feared  that  the  House  organization  might  be  over- 
thrown by  a  coalition  between  the  ''insurgents'^  and 
Democratic  members.  It  is  indeed  evident  that  as 
far  as  positive  powers  are  concerned,  new  accessions 
of  authority  could  scarcely  be  obtained  by  the  speaker. 
The  work  to  be  done  at  the  present  time,  if  the  posi- 
tion of  the  speakership  is  to  retain  its  influence,  is  a 
^  more  careful  adjustment  of  the  existing  machinery  to 
the  needs  of  the  House  and  to  the  susceptibilities  of 
its  members. 

In  1906,  the  chairman  of  the  Appropriations  Com- 
mittee inaugurated  a  practice  which  tends  in  a  meas- 
ure to  restore  the  control  over  all  appropriations  for- 
merly exercis^  by  this  committee,  and  which,~If 
successfully  carried  out,  will  constitute  another  im- 
portant step  'toward  centralization.  He  assigned 
one  member  of  J  his  committee  to  watch  the  appropria- 
tion bills  reported  from  each  of  the  various  com- 
mittees in  charge  of  special  appropriation  bills.  One 
member  was  set  to  watch  the  army  appropriation  bill, 
another  the  post-office  bill,  etc.  Should  any  items 
appear  which  under  the  rules  were  inadmissible  and 
to  which  objection  could  be  made  on  reasonable 
grounds,  the  member  on  guard  was  to  have  them 
stricken  out  on  a  point  of  order.  It  is  evident  that 
the  budgetary  confusion  in  the  House  might  be  to  a 
certain  extent  remedied  by  this  simple  and  effective 
device.  But  as  might  have  been  anticipated,  the  mem- 
bers of  the  House  did  not  take  very  kindly  to  this 
innovation.  When  Mr.  Tawney's  committee  reported 
the  legislative,  executive,  and  judiciary,  appropriation 
bill,  the  resentment  against  the  committee  and  its 

56 


THE  HOUSE  OF  REPRESENTATIVES 

leaders  expressed  itself  in  an  unmistakable  manner.  As 
soon  as  the  first  sections  of  this  measure  came  before 
the  House  in  Committee  of  the  Whole,  objections  were 
made  to  individual  items  on  the  ground  that  there 
was  no  previous  legislation  justifying  such  appro- 
priations. It  is  a  well  known  rule  of  the  House  that 
the  general  appropriation  bills  are  not  to  contain  any- 
new  legislation  or  any  appropriation  which  is  not 
provided  for  by  previous  legislation.  It  was  the  rule 
invoked  by  Mr.  Tawney's  lieutenants  against  the 
measures  brought  in  by  other  committees,  which 
was  now  used  against  his  own  bill  by  other  mem- 
bers of  the  House.  Item  after  item  was  objected 
to,  and  as  these  objections  had  to  be  upheld  by 
the  chairman,  under  the  rules  of  the  House,  a  great 
many  sections  were  stricken  out  and  the  entire  plan 
of  the  Committee  on  Appropriations  was  destroyed. 
The  leaders  of  the  committee  pleaded  in  vain  against 
an  unreasonable  use  of  the  power  of  raising  points 
of  order.  The  dissatisfied  members  simply  argued 
that  if  it  was  right  for  the  leaders  at  their  convenience 
to  use  points  of  order  against  the  minor  committees, 
individual  members  could  with  equal  right  make  use 
of  this  instrument  even  against  a  strong  and  favored 
committee.  But  the  Committee  on  Appropriations  was 
not  yet  at  the  end  of  its  resources,  and  the  result  was 
that  the  Committee  on  Rules,  on  March  28,  reported 
a  resolution  which  perhaps  marks  the  greatest  extent 
to  which  the  power  of  leadership  in  the  House  has 
ever  gone.  The  resolution  provided  in  substance  that 
no  further  points  of  order  should  be  allowed  to  inter- 
vene against  the  consideration  of  any  section  of  the 
^ .    57 


AMERICAN  LEGISLATURES 


legislative,  executive  and  judicial  appropriation  bill, 
except  a  section  relating  to  superannuation.  It  was 
further  provided  that  it  should  be  in  order  to  insert 
any  provision  of  the  bill  which  had  heretofore  been 
ruled  out  on  a  point  of  order.  In  supporting  this 
resolution,  Mr.  Dalzell  said  that  the  laws  fixing  the 
number  of  government  employees  were  in  most  cases 
old  laws.  With  the  increasing  needs  of  the  depart- 
ments, items  had  from  year  to  year  been  put  into  the 
appropriation  bill,  'which  were  not  actually  sanctioned 
by  existing  law.  This  condition  was  really  the  fault 
of  the  various  committees  which  had  not  reported  the 
necessary  legislation  for  improvements  in  the  civil 
service.  This  defense  shows  clearly  the  cumbersome- 
ness  of  the  entire  system  of  financial  legislation.  In 
order  to  live  up  to  the  rules  of  the  House,  it  would  be 
necessary  for  some  twenty  or  thirty  committees  to  act, 
before  a  legal  basis  for  an  adequate  general  appro- 
priation bill  could  be  laid.  But  only  if  they  should  act 
in  harmony  would  such  a  result  be  possible.  Who 
then  is  to  elaborate  the  plan  which  would  govern  all 
these  committees  in  their  recommendations?  Who  is 
to  look  after  the  various  committees  and  see  that  they 
actually  bring  in  the  legislation  necessary  for  the  com- 
plete realization  of  the  plan?  The  very  cumbersome- 
ness  of  this  machinery  has  for  years  driven  the  Com- 
mittee on  Appropriations  to  do  what,  under  the  rules 
of  the  House,  was  illegal,  but  what,  from  the  point 
of  view  of  the  needs  of  the  government,  was  absolutely 
nece^ary.  The  House  conscious  of  this  necessity  hajd 
tacitly  agreed  to  this  continued  evasion  of  the  rules, 
and  it  was  only  when  the  Committee  on  Appropria- 

58 


THE  HOUSE  OF  REPRESENTATIVES 

tions  tried  to  take  a  new  step  in  the  direction  of  cen- 
tralization, that  opposition  was  aroused.  The  oppo- 
sition to  the  resolution  reported  by  the  Committee  on 
Rules  was  naturally  very  strong.  It  was  pointed  out 
that  this  was  the  most  radical  measure  ever  proposed 
by  the  committee ;  that  there  was  no  reason  why  one 
committee  should  be  thus  favored  by  having  its  bills 
freed  from  the  impediments  of  points  of  order.  It 
was  further  pointed  out  that  this  was  a  very  dan- 
gerous precedent,  in  that,  as  one  hundred  members 
constitute  a  quorum  in  the  Committee  on  the  Whole, 
fifty-one  members  might  enact  all  sorts  of  legislation 
unhindered  by  points  of  order  based  on  the  rules  of 
the  House.  Under  this  method  of  procedure  it  would 
be  possible  to  keep  in  the  bill  indefensible  favors  for 
some  of  the  members  of  the  House  and  their  proteges. 
But  notwithstanding  all  this  opposition  the  resolution 
was  passed,  and  the  bill  was  thus  freed  from  all 
further  interference  by  points  of  order.^ 

When  we  consider  the  rigorous  discipline  ordinarily 
enforced  by  the  speaker,  we  are  led  to  inquire  into  the 
rationale  of  the  submission  of  the  House.  What  is 
the  reason  which  compels  its  members  to  extinguish 
themselves  so  utterly,  to  give  up  every  opportunity 
of  making  their  individuality  felt,  and  of  subordinat- 
ing themselves,  their  wishes,  and  their  action  entirely 
to  the  direction  of  a  few  leaders  and  of  the  speaker? 
It  is  certaLinlyTiot'by  cEoice  that  the  average  member 
submits  to  such  a  system.  It  must,  therefore,  be  the 
logic  of  circumstances  that  has  rendered  this  neces- 

*For  this  very  interesting  discussion,  see  **  Congressional 
Record, ' '  Fifty-ninth  Congress,  1st  Sess.,  p.  4507  et  seq. 

.    59 


AMERICAN  LEGISLATURES 


sary.  We  have  already  seen  that  majority  rule  and 
the  orderly  transaction  of  business  could  not  go  on 
without  a  strict  method  of  concentration.  But  there 
is  less  opposition  and  less  effort  to  break  away  from 
the  constituted  authority  than  we  should  expect,  and 
the  machinery  works  ordinarily  with  great  smooth- 
ness. Of  primary  importance,  in  accounting  for  this 
state  of  affairs,  is  the  fact  that  the  leaders  of  the 
House  in  order  to  make  their  leadership  effective  are 
virtually  bound  to  support  the  centralized  authority 
of  the  speaker.  The  men  who,  through  experience  and 
tact,  have  acquired  positions  as  chairmen  of  the  im- 
portant committees,  know  that  their  opportunity  to 
make  their  influence  felt  depends  upon  a  strong 
speakership.  This  alone  will  secure  that  orderly  pro- 
cedure which  will  enable  them  to  get  the  proper  share 
of  the  time  of  the  House  for  the  transaction  of  the 
business  which  has  been  committed  to  their  charge. 
Their  influence  stands  and  falls  with  that  of  the 
speaker.  Should  the  House  become  anarchical,  they 
would  have  to  struggle  for  a  hearing  with  the  ordi- 
nary member  on  the  floor  and  the  advantage  of  a 
position  gained  by  long  experience  and  diligent  ser- 
vice would  be  lost.^  The  speaker  will  place  on  the 
prominent  committees  those  men  whom  he  considers 
the  strongest,  the  most  able  to  gain  a  following  in  the 

*0n  March  23,  1906,  Mr.  Payne  said:  ''Gentlemen  declaim 
against  the  rules  of  the  House,  and  they  want  a  sort  of  town- 
meeting,  where  every  one  of  386  members,  clamoring  for  recog- 
nition of  the  speaker,  shall  receive  recognition  at  the  same 
time  to  make  his  motion  or  to  make  his  speech.  They  want 
pandemonium. '  ^ 

60 


THE  HOUSE  OF  REPRESENTATIVES 

House  and  to  deal  effectively  with  some  particular 
business.  These  men -to  a  certain  extent  remain  de- 
pendent upon  him,  and  he  is  thus  assured  of  the  as- 
sistance of  the  strongest  men  in  the  House,  who  are 
personally  interested  in  supporting  the  predominance 
of  the  hierarchy.  Who  then  is  there  to  lead  and  carry 
out  a  successful  revolt  ?  Suppose  fifty  or  one  hundred 
of  the  newer  members  led  by  younger  men  of  ability 
should  attempt  to  do  so.  They  must  brave  the  entire 
constituted  authority,  ''the  organization"  of  the 
House.  They  will  not  even  be  recognized  to  speak 
except  at  the  sufferance  of  those  in  power.  Every 
member  knows  that  by  revolting  he  endangers  his 
influence.  He  loses  jwhatever  opportunity  he  may 
have  for  obtainmg  legislative  favors  for  his  constitu- 
ents. He  hazards  the  possibility  of  his  own  prefer- 
ment, and  moreover  he  runs  the  risk  of  being  looked 
upon  as  a  traitor  to  his  party.  The  success  of  such  a 
movement  in  ordinary  times  is  almost  unthinkable. 
Only  when  the  whole  House  is  carried  away  by  some 
powerful  excitement,  is  the  speaker's  authority  in 
danger.  On  the  other  hand,  this  situation  of  apparent 
autocracy  does  not  permit  the  speaker  to  become  en- 
tirely capricious  and  arbitrary  in  his  rulings.  A  cer- 
tain reciprocity  of  influence  exists  between  him  and 
the  other  leaders  of  the  House.  He  must  tactfully 
arrange  to  satisfy  the  heads  of  prominent  committees 
and  the  leaders  of  powerful  groups  within  the  House, 
"^^e  cannot  carry  out  an  entirely  personal  and  narrow 
policy,  relying  solely  upon  his  unsupported  authority. 
But  while  the  leaders  will  always  be  consulted,  the 
ordinary  member  is  powerless;  and  in  cases  where 
.     61 


AMERICAN  LEGISLATURES 


the  speaker,  pursuing  a  broad  and  definite  policy, 
uses  the  advantages  of  his  position  tactfully,  he  can 
even  coerce  unwilling  leaders  to  accept  his  plans.  It 
is  thus  the  logic  of  institutions  and  of  political  action, 
not  the  voluntary  choice  of  any  member  or  majority 
of  members,  that  has  imposed  this  authority  upon 
Congress  and  upon  the  Nation.  When  Mr.  Reed 
boldly  carried  out  his  authority  to  the  ultimate  limits, 
he  was  the  most  berated  man  in  the  country.  Had  the 
question  of  his  assumed  power  been  submitted  to  a 
popular  vote,  he  should  undoubtedly  have  been  de- 
feated by  an  enormous  majority;  and  yet  the  force 
of  circumstances  proved  stronger  than  the  likes  and 
dislikes  of  the  public,  and  an  authority  decidedly  un- 
popular in  its  beginning  is  now  accepted  almost  as  a 
matter  of  course.^  * 

Among  the  pronounced  tendencies  of  development 
in  the  House  of  Representatives,  none  is  more  im- 
portant than  that  of  an  organic  growth  in  the  matter 
of  the  selection  of  leaders.  A  sudden  rise  to  promi- 
nence and  power  through  brilliant  gifts  of  oratory 
and  debate  is  unknown  in  the  modern  House.  The 
highest  rewards  are  not  won  by  commanding  ability 
or  the  sustained  power  of  farseeing  statesmanship, 
but  rather  through  shrewdness,  tact,  industry,  and 
experience.  Men  who  continue  in  membership  ses- 
sion after  session,  who  avoid  mistakes,  who  master 
the  intricate  mechanism  of  committee  and  House  pro- 
cedure, are  almost  certain  to  arrive  at  a  position  of 

^  For  a  violent  indictment  of  the  system,  see  Mr.  Moon 's 
speech,  "Congressional  Eecord,"  Fifty-ninth  Congress,  1st 
Sess.,  p.  4899. 


THE  HOUSE  OF  REPRESENTATIVES 

prominence  in  the  end.  All  the  men  who  have  occu- 
pied the  seats  of  power  in  the  House  during  the  last 
few  decades  have  seen  long  service.^  The  character 
of  the  work  of  the  House  'is  such  that  it  requires 
moderation,  tact,  and  diligent  attention  to  detail, 
rather  than  more  striking  abilities.  The  House  is 
not  quick  to  discover  and  reward  great  promise  in  its 
younger  members.  This  .is  one  of  the  respects  in 
which  the  House  of  Representatives  differs  most  from 
the  House  of  Commons.  Although  the  meteoric  ad- 
vance of  Pitt  the  Younger  is  an  extreme  instance, 
men  rise  to  prominence  and  their  ability  wins  ac- 
knowledgment much  faster  in  the  British  Parlia- 
ment than  in  Congress.  The  position  of  prime 
minister  and  the  Cabinet  offices,  indeed,  are  reserved 
to  men  who  combine  masterly  ability  with  long  expe- 
rience in  public  affairs.  But  the  parliamentary  under- 
secretaryships,  which  also  afford  much  opportunity 
of  gaining  the  attention  of  the  public,  are  generally 
filled  by  younger  men  of  exceptional  promise.  The 
cardinal  difference,  however,  lies  in  the  fact  that  the 
ablest  men  of  the  House  of  Commons  do  not  look 
beyond  it  for  the  fulfilment  of  their  highest  ambi- 
tions of  public  service.  Leadership  of  the  House 
constitutes  the  highest  political  honor  in  Great  Brit- 
ain ;  whereas  the  abler  members  of  the  House  of  Rep- 

*  The  years  of  service  in  the  House  (including  the  Fifty- 
ninth  Congress)  are  as  follows:  KandaU  served  28  years, 
Blaine  13  years,  Carlisle  14,  Keed  24,  Crisp,  13,  Holman  32, 
Cannon  32,  McKinley  12,  Hepburn  20,  Dingley  18,  Payne  24, 
Tawney  14,  Dalzell  20,  Eichardson  22,  Roger.  Q.  Mills  19,  De 
Armond  16,  J.  S.  Williams  14. 

.   63 


AMERICAN  LEGISLATURES 


resentatives  are  rather  disposed  to  look  to  the  Senate 
for  the  culmination  of  their  careers.  The  hierarchy 
in  the  House  keeps  a  firm  hand  on  the  reins  of  power, 
and  permits  no  one  to  break  into  the  charmed  circle 
through  mere  ability.  Nor  do  the  rewards  of  long 
service  in  the  House  equal  in  attractiveness  the  oppor- 
tunities of  a  senatorial  career.  It  is  a  remarkable 
fact  that  few  of  the  older  leaders  of  the  House  go  to 
the  Senate.  In  general  men  go  from  the  more  popular 
to  the  more  select  chamber  after  a  comparatively  shart 
service  in  the  former.^  The  fact  that  many  of  the 
ablest  men  in  the  House  are  drawn  off  after  a  com- 
paratively short  service,  to  enter  the  other  chamber, 
has  a  strong  influence  upon  the  relations  of  the  two 
houses.  For  this  reason  alone,  the  opposition  of  the 
House  to  the  Senate  is  less  real  than  that  of  an  elective 
to  a  hereditary  chamber.  We  could  not  expect  sincere 
enthusiasm  in  a  contest  against  the  prerogatives  of  a 
senate,  which  most  of  the  members  of  the  House 
are  secretly  or  openly  hoping  to  enter  at  some  time. 
It  is  rather  the  older  leaders,  who  derive  considerable 
political  importance  from  their  position  in  the  House, 
who  ^re  the  most  ardent  champions  of  its  rights;— 
men  like  Mr.  Cannon,  to  whom  the  House  has  given 

^  There  are  of  course  exceptions  to  the  rule.  Roger  Q.  Mills 
entered  the  Senate  after  19  years  of  service  in  the  House; 
Carlisle  and  Blaine  passed  from  the  speakership  to  the  Senate. 
Hopkins  served  18,  Burrows  16,  years.  But  the  average  is 
much  shorter.  DoUiver  served  11  years  in  the  House;  Bailey, 
Newlands  and  Hemenway  10;  Dick  and  Long  7;  Lodge,  Bur- 
kett.  Stone,  La  FoUette  and  Rayner  6;  Gallinger,  Mallory  and 
Carmack  4;  Daniel,  Ball,  Patterson  and  Brandegee  2;  and 
Sullivan  of  Mississippi  only  one  year. 

64 


THE  HOUSE  OF  REPRESENTATIVES 

prominence,  and  who  have  passed  beyond  the  period 
when  senatorial  ambitions  stir  them  very  strongly. 

The  importance  accorded  to  experience  in  the  busi- 
ness of  the  House  makes  appointments  to  prominent 
committee  positions  largely  a  matter  of  seniority.  It 
is  exceedingly  unusual  to  promote  a  younger  man  on 
a  committee  over  the  heads  of  associates  of  longer 
service.  Occasionally  a  strong  man  is  taken  from 
without  and  placed  at  the  head  of  a  committee.^  This 
practice  of  seniority  promotion,  together  with  the  fact 
that  the  services  of  clerks  of  important  committees  are 
usually  retained  for  a  long  time,  gives  the  House  that 
conservative  and  expert  element  which  it  sometimes 

*  E.g.  Mr.  Overstreet  was  appointed  chairman  of  the  Committee 
on  Post-offices  and  Post -roads  in  1903,  giving  him  precedence 
over  two  men  who  had  served  sixteen  and  thirty-two  years  re- 
spectively. The  latter  were  consoled  by  appointment  to  unim- 
portant chairmanships.  In  1905  the  selection  of  a  chairman 
for  the  Committee  on  Appropriations  created  considerable  in- 
terest. There  were  members  on  the  committee  who  had  served 
fourteen  and  twenty-six  years  respectively  in  the  House.  The 
choice  finally  fell  on  a  member  (Mr.  Tawney)  who  had  acted 
in  the  capacity  of  a  **whip, "  responsible  for  keeping  the 
members  of  the  party  in  line  and  bringing  out  the  full  voting 
strength  on  critical  occasions.  This  function,  formerly  un- 
known in  the  House,  has  been  developed  as  a  part  of  the  closer 
organization.  It  is  significant  to  note  that  in  Congress  a  mem- 
ber who  performed  this  useful  service  has  been  promoted  to 
the  headship  of  a  most  important  committee,  and  has  thus  be- 
come one  of  the  floor  leaders ;  whereas  in  England  men  who  have 
served  the  House  of  Commons  in  this  capacity  have  never 
taken  a  prominent  part  in  parliamentary  discussion,  but  are 
usually  rewarded  for  their  services  by  a  peerage.  The  dif- 
ference indicates  the  importance  of  machinery  and  organiza- 
tion in  the  House  of  Representatives. 

65 


AMERICAN  LEGISLATURES 


lacked  in  the  earlier  periods  of  its  history.  In  order 
to  become  a  leader  in  the  House,  a  member  must  be 
able  to  retain  his  seat  a  long  time.  Either  political 
conditions  must  be  favorable  to  such  permanency  of 
tenure,  as  it  is  in  some  of  the  Southern  and  smaller 
Eastern  states ;  or  the  member  must  be  a  shrewd  poli- 
tician who  knows  how  to  adjust  himself  to  the  shifting 
currents  of  politics,  and  to  keep  his  constituents  in 
good  humor  through  political  favors  judiciously  dis- 
tributed. A  mistake  in  the  filling  of  a  postmastership 
may  rob  the  House  of  a  leader  whose  usefulness  in 
legislative  action  is  beyond  doubt.  It  is  beginning  to 
be  recognized  by  the  public  that  his  constituents  may 
materially  assist  their  representative  in  gaining  a 
position  of  influence,  by  retaining  the  same  man  in 
office  for  a  long  time.  This  matter  is  strikingly  illus- 
trated by  a  comparison  of  the  committee  appoint- 
ments in  the  Fifty-fourth  and  the  Fifty-eighth  Con- 
gresses. In  the  Fifty-fourth,  the  following  states  had 
the  largest  number  of  chairmanships :  New  York  ten, 
Pennsylvania  nine,  Massachusetts  six,  Iowa  six,  Illi- 
nois five,  Maine  four.  In  the  Fifty-eighth  Congress : 
Ohio  eight.  New  York  seven,  Illinois  seven,  Wisconsin 
six,  Pennsylvania  five,  Indiana,  Iowa  and  New  Jersey 
four  each.  Maine,  which  in  the  former  Congress  was 
represented  by  Reed,  Dingley,  Milliken,  and  Boutelle, 
none  of  whom  had  served  less  than  seven  terms,  in 
the  Fifty-eighth  had  no  chairmanship  at  all,  her  oldest 
representative  being  in  his  fourth  term.  On  the  other 
hand  Wisconsin,  which  had  only  one  chairmanship  in 
the  Fifty-fourth,  at  which  time  nearly  all  its  members 
were  new,  in  1903  received  six  chairmanships,  which 

66 


THE  HOUSE  OF  REPRESENTATIVES 

went  to  men  who  had  served  from  eight  to  twelve 
years.  The  prominence  of  Ohio  in  this  respect  was 
due  to  the  same  cause. 

The  main  consideration,  after  all,,  is  the  effect  which 
the  development  of  this  system  of  hierarchical  leader- 
ship and  of  centralized  power  has  on  the  character 
of  legislation  in  the  House.  It  must  be  confessed 
that  it  is  by  no  means  clear  whether  the  quality  of 
work  performed  has  been  much  improved  by  the 
mechanism  so  artfully  devised.  Mr.  Reed  turned  the 
House  into  an  instrument  which  he  could  use  for  the 
development  of  statesmanlike  policies.  But  the  sys- 
tem could  not  fail  to  a  large  extent  to  destroy  the 
self-respect  of  the  House,  and  to  make  the  average 
member  lose  what  little  of  responsibility  he  still  felt 
for  the  result  of  legislation.  On  account  of  the 
stringency  of  the  rules  and  the  power  of  the  leaders 
to  arrange  the  business  of  the  House,  debates  have 
become  very  perfunctory.  It  is  rarely  that  the  merits 
of  a  measure  are  debated  at  all  carefully  on  the  floor 
of  the  House.  A  debate  in  the  House  assumes  the 
character  of  shrewd  fencing  for  position,  of  raising 
and  combating  points  of  order,  of  explaining  tech- 
nical matters,  rather  than  of  a  discussion  of  the  prin- 
ciples underlying  a  measure  and  their  application  to 
the  facts  under  consideration.  A  sharp  persorfal  tilt 
will  attract  the  attention  of  the  House,  which  is  al- 
ways a  grateful  listener  to  sarcasm  and  witticism. 
It  will  also  give  heed  to  declarations  of  policy  which 
may  occasionally  be  made  by  chairmen  of  important 
committees.  But  the  actual  subject-matter  of  legis- 
lation receives  but  scant  attention,  and  it  is  extremely 
""        67 


AMERICAN  LEGISLATURES 


rare  for  members  to  engage  in  an  adequate  exposition 
of  the  bearing  of  a  particular  measure.  In  closing  the 
discussion  on  the  railway  rate  bill  in  1906,  the  chair- 
man of  the  Committee  on  Inter-state  Commerce  spent 
most  of  his  time  in  sarcastic  references  to  another 
member,  while  really  important  matters  pointed  out 
in  questions  from  the  floor  were  slurred  over  or 
evaded.^  If  a  committee  chairman  entertains  the 
House,  avoids  committing  himself  on  doubtful  points, 
and  keeps  his  opponents  from  gaining  any  tactical 
advantages,  he  may  be  well  satisfied.  He  does  not 
expect  to  convince  anyone,  nor  does  he  talk  to  an 
audience  beyond  his  immediate  hearers.  What  is  to 
be  done  in  the  way  of  legislation  having  already  been 
decided  by  the  leaders,  it  is  for  the  chairman  to  avoid 
arousing  unnecessary  antagonism  or  placing  his  side 
in  a  position  where  it  may  be  criticized  on  the  floor 
of  the  House.  The  party  in  opposition  is  so  manacled 
that  it  contents  itself  with  brief  protests.  So,  unless 
violent  differences  of  opinion  exist  in  the  majority 
party  itself,  as  was  the  case  in  respect  to  the  Cuban 
reciprocity  bill  in  1902,  there  is  no  real  debate  in- 
volving the  principles  of  legislation.  In  1901,  the 
Cuba  and  Philippine  amendments  to  the  army  bill 
were  put  through  in  an  hour's  debate;  the  discussion 
of  the  statehood  bill  in  1905  occupied  forty  minutes. 
Nor  can  it  be  said  that  the  leaders  have  used  their 
great  power  for  the  purpose  of  allowing  only  mature 
and  well-considered  measures  to  pass.  The  Dingley 
tariff  was  rushed  through  the  House,  but  the  Senate 

^  See    ' '  Congressional    Eecord, ' '    Fifty-ninth    Congress,    1st 
Sess.,  p.  2468  et  seq. 

68 


THE  HOUSE  OF  REPRESENTATIVES 

took  occasion  to  add  eight  hundred  and  seventy-two 
amendments.  Such  measures  as  the  Littlefield  anti- 
trust bill,  and  the  Esch-Townsend  bill,  however  just 
in  their  conception,  were  certainly  not  sufficiently 
matured  and  well  enough  considered  to  carry  with 
them  the  hearty  support  of  the  majority  that  passed 
them  through  the  House.  Measures  are  often  passed 
for  superficial  political  effect,  for  the  sake  of  appear- 
ance in  order  to  satisfy  popular  clamor,  perhaps  in  the 
secret  hope  that  the  Senate  will  tone  down  their 
rashness,  and  give  them  an  acceptable  form;  or  that, 
if  they  are  defeated,  such  defeat  can  be  placed  on  the 
broad  shoulders  of  the  Senate. 

The  House  has  developed  a  machine  for  producing 
leaders,  but  these  leaders  have  not  always  shown  the 
qualities  of  statesmanship.  Nor  have  they  been  able 
to  restrain  the  House  in  its  inordinate  desire  to  appro- 
priate the  public  money.  It  was  one  of  the  greatest 
titles  of  Mr.  Reed  to  fame  that  he  stood  like  a  wall 
between  the  public  treasury  and  the  ravenous  hunger 
of  the  House  for  appropriations.  But  private  pen- 
sion bills  are  more  readily  passed  at  the  present  time,^ 
and  even  the  large  appropriation  bills  have  not  been 
successfully  guarded  by  the  congressional  leaders.  It 
is  true  of  Congress,  as  Mr.  Gillett  says:  ''The  great 
difficulty  is  to  find  the  spot  where  Congress  will  agree 
to  economize.  Most  of  the  members  say  they  are  for 
economy,  and  I  believe  they  are  sincere,  but  when  it 

*0n  one  day  in  January,  1905,  459  bills  were  passed  in 
eighteen  minutes.  In  1899,  the  river  and  harbor  bill  carrying 
appropriations  amounting  to  thirty  millions  was  passed  after 
a  debate  of  ninety  minutes. 

-    69 


AMERICAN  LEGISLATURES 


comes  to  applying  their  principle  to  any  particular 
case,  there  is  apt  to  be  some  special  reason  against  it, 
and  so,  while  favoring  economy  in  the  abstract,  they 
oppose  it  in  practice. ' '  So  strong  is  this  irresponsible 
desire  for  lavish  public  expenditure,  that  Chairman 
Hemenway  of  the  Committee  on  Appropriations,  in 
1905,  pleaded  in  vain  with  the  House  to  avoid  squan- 
dering the  public  money  at  a  time  when  the  treasury 
was  facing  a  deficit  of  $60,000,000.  And  yet  the 
House,  when  in  Committee  of  the  Whole  considering 
the  general  appropriation  bills,  pleases  itself  in  the 
display  of  a  petty  and  niggardly  economy,  discussing 
the  smallest  items  in  clerk  hire  and  office  expenditure 
with  all  the  earnestness  of  a  village  council.  A  dif- 
ferent spirit  prevails  when  bills  for  public  buildings, 
river  and  harbor  appropriations,  etc.  (the  "pork  bar- 
rel''  bills),  are  before  the  House. 

The  long  continued  predominance  of  one  party  has 
not  been  altogether  favorable  to  the  position  of  the 
House.  It  has  robbed  it  of  that  life  and  activity 
which  is  created  by  a  strong  opposition.  It  has  en- 
trenched the  hierarchical  system  without  bringing 
men  of  commanding  ability  into  the  positions  of 
leadership.  Mr.  Reed  for  a  time  made  the  House 
important  through  his  own  genius.  His  personal  im- 
portance transcended  his  position  in  the  House,  which 
he  used  merely  for  the  achievement  of  his  broader 
purposes  of  statesmanship.  The  House  became  im- 
portant through  him,  but  it  lost  inner  strength.  It 
lost  the  feeling  of  dignity  and  power  which  had  for- 
merly upheld  it  in  the  struggle  with  the  other  cham- 
ber. Under  Mr.  Reed's  successors  the  inner  weak- 
ness of  the  House  became  more  and  more  apparent. 

70 


THE  HOUSE  OF  REPRESENTATIVES 

How  distinctly  unfavorable  a  one-party  period 
must  be  to  the  rights  of  the  House,  can  be  understood 
only  after  considering  the  relations  of  the  latter  with 
the  Senate.  As  the  Senate  is  in  control  of  the  party 
machinery,  the  representatives  of  a  state  are  fre- 
quently reduced  to  political  vassalage.  They  must 
look  for  political  support  to  their  senators,  and  their 
struggle  for  the  independence  and  rights  of  the  House 
will  at  best  be  half-hearted.  During  periods  when  the 
House  represents  a  different  party  from  that  of  the 
Senate  majority,  there  will  be  a  far  more  energetic 
defense  of  its  rights.  The  nature  of  this  problem,  we 
shall  more  fully  consider  in  our  study  of  the  organic 
character  and  the  action  of  the  Senate. 


CONGRESSIONAL  PROCEDUEE 

The  procedure  in  the  houses  of  Congress  is  regulated 
in  general  by  the  manual  of  parliamentary  practice 
framed  by  Thomas  Jefferson,  and  more  specifically 
by  the  standing  rules  of  each  house.  The  rules  of  the 
House  of  Representatives,  together  with  the  decisions 
of  the  speaker  interpreting  them,  are  a  complicated 
body  of  parliamentary  law.^  We  can,  in  this  place, 
point  out  only  the  general  order  of  business  and  the 
most   essential   rules   with  respect   to   debate.      The 

'  TBe  precedents  are  collected  in  A.  C.  Hinds '  ' '  Parlia- 
mentary Precedents  of  the  House  of  Representatives,^'  Wash- 
ington, 1899.  Mr.  Hinds  has  for  a  long  time  been  clerk  at  the 
speaker's  table,  and  is  an  authoritative  adviser  on  matters  of 
parliamentary  procedure.. 

71 


AMERICAN  LEGISLATURES 


regular  order  of  business  in  the  House  is  fixed  as 
follows : 

1.  Prayer  by  the  chaplain. 

2.  Reading  and  approval  of  the  journal. 

3.  Correction  of  reference  of  public  bills. 

4.  Disposal  of  business  on  speaker's  table. 

5.  Unfinished  business. 

6.  The  morning  hour  for  the  consideration  of  bills 

called  up  by  committees. 

7.  Motions  to  go  into  Committee  of  the  Whole  House 

on  the  state  of  the  Union. 

8.  Orders  of  the  day. 

Business  on  the  speaker's  table  includes,  among 
other  matters,  messages  of  the  President  and  Senate 
bills.  A  Senate  bill  on  the  speaker's  table  can  be 
called  up  directly  if  it  is  not  of  such  a  nature  as  to 
require  reference  to  a  committee,  or  if  a  substantially 
similar  bill  has  already  received  the  approval  of  a 
House  committee,  or  if  any  committee  requests  that 
it  be  called  up.  The  expression  ''morning  hour"  in 
the  rule,  referred  originally  to  an  actual  hour  of 
sixty  minutes;  under  the  present  rules,  however,  the 
business  of  the  morning  hour  may  continue  for  a 
longer  time  unless  interrupted  at  the  end  of  sixty 
minutes  by  a  privileged  report,  or  by  a  motion  to  go 
into  Committee  of  the  Whole  House  on  the  state  of 
the  Union.  The  business  of  the  morning  hour  con- 
sists of  general  bills  called  up  by  committees.  The 
consideration  of  money  bills  and  of  private  bills  is 
almost  always  had  in  Committee  of  the  Whole  House. 
Bills  which  have  been  reported  back  from  the  com- 

72 


THE  HOUSE  OF  REPRESENTATIVES 

mittees  are  placed  on  one  of  the  three  calendars, 
namely : 

1.  The  Calendar  of  the  Committee  of  the  Whole 
House  on  the  state  of  the  Union  (Union  Calendar), 
to  which  are  referred  bills  raising  revenue,  general 
appropriation  bills,  and  bills  of  a  public  character 
directly  or  indirectly  appropriating  money  or  prop- 
erty. 

2.  The  House  Calendar,  to  which  are  referred  all 
bills  of  a  public  character  not  directly  or  indirectly 
appropriating  money  or  property. 

3.  The 'Calendar  of  the  Committee  of  the  Whole 
House  (Private  Calendar),  to  which  are  referred  all 
bills  of  a  private  character. 

But  these  calendars  constitute  merely  a  record  of 
the  business  that  is  regularly  before  the  House;  the 
bills  are  not  necessarily,  or  even  frequently,  called  in 
the  order  in  which  they  appear  on  the  calendar;  the 
Union  Calendar,  for  instance,  has  not  been  called  for 
more  than  ten  years  past. 

As  stated,  after  an  hour  has  been  devoted  to  the 
consideration  of  general  bills,  it  is  in  order  to  enter- 
tain the  motion  to  go  into  Committee  of  the  Whole 
House  on  the  state  of  the  Union,  or,  when  authorized 
by  a  committee,  to  go  into  Committee  of  the  Whole 
House  to  consider  some  particular  bill.  When  no  par- 
ticular bill  is  designated,  it  is  understood  that  revenue 
or  appropriation  bilb  will  be  discussed  in  Committee 
of  the  Whole.  When  the  committee  is  to  be  called 
for  this  latter  purpose,  a  motion  to  that  effect  has 
precedence  over  even  the  business  of  the  morning 
hour,  and  such  a  motion  may  even  be  made  on  those 
•  73 


AMERICAN  LEGISLATURES 


days  which  by  the  rules  have  been  set  apart  for  spe- 
cial business.  The  House,  on  going  into  Committee 
of  the  Whole,  frequently  fixes  the  time  to  be  devoted 
to  general  discussion.  In  Committee  of  the  Whole, 
one  hundred  members  constitute  a  quorum. 

The  regular  course  of  business  in  the  House  may  at 
any  time  be  interrupted  by  privileged  reports  which 
may  be  made  by  certain  committees.  The  committees 
entitled  to  make  privileged  reports,  and  the  subjects 
upon  which  such  reports  are  allowed,  are  the  follow- 
ing: the  Committee  on  Rules,  on  rules,  joint  rules, 
and  order  of  business ;  the  Committee  on  Elections,  on 
the  right  of  a  member  to  his  seat;  the  Committee  on 
Ways  and  Means,  on  bills  raising  revenue;  the  com- 
mittees having  jurisdiction  of  appropriations,  the 
general  appropriation  bills ;  the  Committee  on  Rivers 
and  Harbors,  bills  for  the  improvement  of  rivers  and 
harbors;  the  Committee  on  the  Public  Lands,  bills 
for  the  forfeiture  of  land  grants  to  railroads  and 
other  corporations,  bills  preventing  speculation  in  the 
public  lands,  and  bills  for  the  reservation  of  the 
public  lands  for  the  benefit  of  actual  and  bona  fide 
settlers;  the  Committee  on  Territories,  bills  for  the 
admission  of  new  states;  the  Committee  on  Enrolled 
Bills,  enrolled  bills;  the  Committee  on  Invalid  Pen- 
sions, general  pension  bills;  the  Committee  on  Print- 
ing, on  all  matters  referred  to  them  of  printing  for 
the  use  of  the  House  or  the  two  houses ;  and  the  Com- 
mittee on  Accounts,  on  all  matters  of  expenditure  of 
the  contingent  fund  of  the  House.  Reports  of  con- 
ference committees  are  highly  privileged  by  always 
being  in  order,  except  when  the  journal  is  being  read, 

74 


THE  HOUSE  OF  REPRESENTATIVES 

when  the  roll  is  being  called,  or  the  House  is  taking  a 
vote.  A  conference  report  may  be  made  in  interrup- 
tion of  a  member  who  is  occupying  the  floor  for  debate, 
or  during  the  time  set  apart  for  a  special  order. 
Other  privileged  reports  do  not  take  precedence  over 
a  special  order.  The  manner  in  which  the  reports 
from  the  Committee  on  Rules  are  protected  has  al- 
ready been  considered. 

On  account  of  the  pressure  of  general  business  it 
is  common  to  assure  important  bills  sufficient  and 
speedy  consideration  by  making  them  a  special  order 
for  a  certain  day.  As  this  procedure,  however,  con- 
stitutes a  change  in  the  established  order  of  business, 
it  amounts  to  a  change  in  the  rules,  and  can  be  adopted 
only  in  the  manner  prescribed  for  such  action.  For 
this  reason  the  order  of  business  is  largely  determined 
by  the  Committee  on  Rules,  by  whom  changes  in  the 
rules  must  be  reported  in  order  to  come  before  the 
House.  It  is  the  usual  practice  in  the  resolution  for 
a  special  order,  to  fix  the  time  when  the  final  vote  on 
the  measure  concerned  shall  be  taken.  Special  days 
are  set  apart  for  the  consideration  of  particular  busi- 
ness, as  follows:  Friday  of  each  week,  for  private 
bills;  the  second  and  fourth  Monday  of  each  month, 
for  bills  reported  from  the  Committee  on  the  District 
of  Columbia;  the  first  and  third  Monday  of  each 
month,  and  the  last  six  days  of  the  session,  are  known 
as  ''suspension  days";  on  these  days  any  motion  to 
suspend  the  rules  will  be  in  order,  private  members 
being  given  the  preference  on  the  first  Monday  and 
committees  on  the  third  Monday  of  the  month.  A 
motion  to  suspend  the  rules  requires  a  two-thirds 
.  75 


AMERICAN  LEGISLATURES 


vote,  and  forty  minutes'  debate  is  allowed  on  such 
^notion. 

'  Debate  in  the  House  is  regulated  by  a  very  compli- 
cated code  of  rules.  No  member  is  allowed  to  occupy 
more  than  one  hour  in  debate,  nor  may  he  speak  more 
than  once  upon  any  proposition  unless  he  is  the  intro- 
ducer of  the  pending  matter,  or  the  member  report- 
ing a  measure  from  a  committee.  It  is  however  per- 
missible for  members  who  have  spoken  on  the  main 
question  to  speak  again  on  an  amendment.  During 
debate  in  the  House,  a  member  must  confine  himself 
strictly  to  the  subject  under  discussion,  but  this  is  not 
the  rule  during  general  discussion  in  the  Committee 
of  the  Whole  House  on  the  State  of  the  Union.  A 
member  who  has  been  recognized  by  the  Speaker  and 
who  has  the  floor  cannot  be  interrupted  by  a  motion 
to  adjourn.  He  may  yield  a  part  of  his  time  to  other 
members  for  purposes  of  explanation  of  a  pending 
measure,  but  if  he  allows  an  amendment  to  be  offered 
in  this  manner  he  loses  control  of  the  floor.  In  Com- 
mittee of  the  Whole,  the  time  for  the  general  debate 
having  been  fixed  by  the  House,  the  committee  is 
powerless  to  extend  it  even  by  unanimous  consent. 
After  the  general  debate  in  Committee  of  the  Whole  is 
closed,  amendments  may  be  offered  under  the  rule 
limiting  the  speeches  on  such  amendments  to  two  of 
five  minutes  each.  It  is  a  common  practice  under  this 
rule,  in  order  to  discuss  any  particular  provision,  to 
move  to  amend  by  striking  out  the  last  word  of  the 
clause  involved.  On  any  motion  to  suspend  the  rules, 
or  when  the  previous  question  has  been  ordered  on  a 
proposition  on  which  there  has  been  no  debate,  forty 

76 


THE  HOUSE  OF  REPRESENTATIVES 

minutes  of  debate  are  allowed,  which  time  is  divided 
equally  between  the  supporters  and  opponents  of  the 
measure.  Like  all  legislative  bodies,  the  House  may 
at  any  time  absolutely  modify  its  methods  of  pro- 
cedure by  unanimous  consent. 

The  order  of  business  in  the  Senate  is  as  follows: 

1.  Prayer. 

2.  Reading  of  the  journal. 

3.  Presentation  of  petitions,  reports,  etc.,  and  in- 

troduction of  bills  and  resolutions    (morning 
business). 

4.  Bills  and  resolutions  may  be  taken  up  from  the 

calendar,  if  there  is  no  objection,  and  discussed 
under  the  five-minute  rule. 

5.  Not  later  than  two  o'clock  the  Calendar  of  Gen- 

eral  Orders  is  taken  up,  which  contains  all 
measures  regularly  before  the  Senate. 

When  called  up,  a  measure  on  this  calendar  which 
has  not  been  made  a  special  order,  or  has  not 
been  taken  up  from  the  calendar  in  the  morning  hour 
without  objection,  may  be  subjected  to  any  kind  of 
treatment.  It  may  be  recommitted,  passed  over,  post- 
poned, or  placed  at  the  foot  of  the  calendar;  or  it 
may  be  debated,  amended,  and  voted  on.  As  there  is 
no  controlling  committee  in  the  Senate,  the  time  when 
a  vote  is  to  be  taken  is  fixed  by  agreement  between 
both  parties.  As  in  the  House,  money  bills  are  given 
a  privileged  status.  All  bills  and  resolutions  which 
have  received  two  readings  are  considered  by  the 
Senate  under  the  procedure  of  a  committee  of  the 

77 


AMERICAN  LEGISLATURES 


whole,  although  the  Senate  does  not  actually  go  into 
Committee  of  the  Whole;  under  this  procedure  no 
motions  are  entertained  upon  such  measures  except 
propositions  for  amendment.  When  a  bill  is  intro- 
duced into  the  Senate  ''by  request,"  the  senator  in- 
troducing the  measure  thereby  indicates  his  desire 
not  to  be  held  responsible  for  the  same. 


W 


78 


CHAPTER  III  . 

THE  SENATE 

We  have  been  accustomed  to  look  upon  the  era  of 
1787-1789  as  of  such  transcendent  importance  that 
its  labors  and  achievements  would  probably  not  be 
equaled  in  the  course  of  our  national  experience.  And 
yet  the  present  bids  fair  to  rival  that  great  construc- 
tive period,  and  the  relations  which  it  is  called  upon 
to  adjust  are  even  deeper  of  reach  than  those  matters 
of  institutional  form  ^hich  were  settled  at  the  earlier 
epoch.  For  the  preseht  age  deals  with  the  co-ordina- 
tion of  our  established  political  system,  democratic  in 
form,  with  the  powerful  economic  and  social  forces 
which  the  recent  pasp  has  brought  forth  and  which 
are  oligarchic  in  their  tendency.  We  are  living  in  an 
age  in  which  new  social  categories  are  being  estab- 
lished. It  is  no  longe:'  the  form,  but  the  substance  of 
political  and  social  life  that  is  being  affected,  through 
the  creation  of  new  groupings  of  power,  and  through 
a  new  correlation  of  influences  acting  directly  upon 
social  and  economic  li:!e.  In  this  era,  the  Senate  be- 
comes of  particular  inportance,  because  it,  of  all  our 
political  institutions,  :s  most  representative  of  these 
great  economic  forces  which  are  seeking  mutual  ad- 
-  79 


AMERICAN  LEGISLATURES 


justment,  and  are  struggling  for  mastery  over  our 
national  life  in  all  its  phases.  In  the  settlement  of 
these  impending  problems,  much  will  depend  on  the 
complexion,  the  attitude,  and  the  wisdom  of  the 
Senate,  for  this  body  is  by  its  constitutional  purpose 
called  upon  to  occupy  a  mediatory  position.  Should 
it,  however,  narrowly  interpret  its  function  as  being 
representative  of  special  economic  interests,  its  im- 
portance will  ultimately  be  impaired,  and  its  great 
opportunity  lost.  Such  a  result  would  be  a  national 
calamity  because  the  opportunities  of  the  Senate  to 
be  a  successful  mediator  between  conflicting  forces 
are  not  equaled  by  any  other  political  institution ;  and 
should  the  Senate  definitely  become  the  out  and  out 
advocate  of  certain  particular  interests  and  tenden- 
cies, the  nation  cannot  avoid  a  bitter  civil  struggle,  in 
which  all  mutual  understanding  of  the  forces  en- 
gaged will  be  lacking,  and  which  may  lead  to  almost 
any  length  of  disturbance  and  disaster.  These  facts 
constitute  the  basis  of  the  real  importance  of  the 
Senate  at  the  present  time. 

Senator  Lodge  has  repeatedly  argued  that  the 
powers  of  the  Senate  have  not  increased  during  the 
last  hundred  years,  but  are  practically  the  same  as 
those  exercised  by  that  body  at  the  beginning  of  our 
history  under  the  Constitution.  It  is  of  course  easy 
to  find  early  instances  of  the  exercise  of  the  powers 
connected  with  appointment,  treaty-making,  and 
money  bills,  as  well  as  to  derive  these  powers  from  our 
constitutional  system  by  a  process  of  logical  deduc- 
tion. Yet  as  soon  as  we  consider  the  actual  manner 
in  which  these  powers  were  exercised  and  the  temper 

80 


THE  SENATE 


which  animated  the  action  of  the  Senate,  it  seems  im- 
possible to  avoid  the  conclusion  that  there  has  been 
effected,  in  favor  of  the  Senate,  a  very  substantial  in- 
crease of  actual  power  and  authority.  As  a  matter  of 
fact,  its  powers  were  originally  exercised  in  isolated 
cases,  without  that  systematic  co-ordination  and  con- 
stant use  which  has  tended  to  place  all  the  controlling 
threads  of  governmental  machinery  in  the  hands  of 
the  Senate.  The  use  made  of  the  power  of  confirma- 
tion alone,  has  been  suiBcient  to  give  the  relations 
between  the  Senate  and  the  President  a  character 
which  they  certainly  did  not  have  in  the  earlier 
days. 

Moreover,  the  basis  on  which  the  political  authority 
of  the  Senate  rested  during  the  first  decades  of  our 
government,  was  entirely  different  from  that  which 
has  resulted  from  the  events  of  the  great  civil  strug- 
gle. In  the  earlier  years  senators  were  looked  upon 
as  ambassadors  of  their  respective  states,  limited  in 
their  individual  discretion,  and  subject  to  instruc- 
tions from  the  legislatures  which  had  elected  them. 
The  great  powers  accorded  the  Senate  at  the  begin- 
ning of  our  government  under  the  Constitution,  there- 
fore, had  their  reason  in  the  federal  nature  of  the 
Union.  The  Senate  was  powerful  not  so  much  as 
Senate  or  as  a  legislative  body,  but  as  the  representa- 
tive of  the  sovereignties  of  the  individual  states.  At 
first  sight,  it  would  therefore  seem  natural  that  the 
Senate  should  have  suffered  a  loss  in  importance  with 
the  gradual  decline  and  final  overthrow  of  the  prin- 
ciple of  State  Rights.  But  its  powers  were  saved  and 
actually  augmented  through  what  we  may  call  a  sub- 

«  .  81 


AMERICAN  LEGISLATURES 


stitution  of  causes.  In  political  history  it  often  oc- 
curs that  an  institution  created  for  a  certain  purpose, 
and  exercising  certain  functions  to  that  end,  may 
retain  its  powers  though  the  basis  and  source  thereof 
is  shifted.  So,  though  the  States'  Rights  view  of  the 
Federal  Government  was  defeated,  the  Senate  never- 
theless increased  in  power  because  it  had  already 
gained  a  historic  positionjas^a  legislative  body.  Its 
actual  power,  which  it  now  wields  qua  Senate,  rather 
than  qua  representative  of  the  sovereign  states,  is 
founded  primarily  upon  the  fact  that  it  possesses  great 
permanence,  experience,  training,  and  close  connec- 
tion with  powerful  interests  and  organizations. 

There  have  thus  far  been  three  fully  rounded 
periods  in  the  historic  development  of  the  Senate. 
During  the  first  era,  which  covered  the  period  down 
to  1825,  the  Senate  may  be  likened  to  a  planet,  re- 
ceiving its  light  from  other  bodies.  It  acted  as  an 
executive  council  to  the  President,  and  as  representa- 
tive of  the  state  legislatures;  but,  in  and  of  itself,  it 
was  not  regarded  as  of  equal  importance  to  the  state 
legislatures,  or  to  the  House  of  Representatives. 
Clay,  though  elected  to  the  Senate,  chose  to  make  the 
House  the  field  of  his  political  action,  and  men  even 
preferred  leadership  in  the  state  legislatures,  to  what 
was  considered  the  somewhat  empty  honor  of  the  sena- 
torial dignity.  During  the  second  era,  which  extends 
down  to  the  close  of  the  Civil  War,  the  Senate,  through 
the  presence  in  it  of  a  galaxy  of  brilliant  men,  estab- 
lished a  claim  to  intellectual  leadership  of  the  Nation  in 
political  matters.  The  advantages  of  its  position  were 
realized  and  made  use  of  with  so  much  effectiveness 

82 


THE  SENATE 


and  so  much  dignity,  that  the  Senate  became  famous 
among  the  legislative  bodies  of  the  world.  The  Senate 
first  attracted  general  public  attention  through  its 
dramatic  struggle  against  Jackson.  The  fact  that  the 
dictator  was  not  permitted  at  will  to  mould  the  policy 
of  this  body,  that  in  fact  all  effective  opposition  to 
him  was  there  centered,  made  a  great  impression  upon 
the  public  mind.  Though  the  Senate  did  not  succeed 
in  gaining  the  upper  hand  against  him,  its  influence 
was  greatly  augmented,  and  the  weaker  men  who  fol- 
lowed Jackson  in  the  presidency,  were  forced  to  admit 
its  power.  During  the  two  decades  after  the  war,  the 
Senate  was  unrivalled  and  undisputed  in  its  sway. 
It  succeeded  in  wrecking  the  independent  policy  of 
Johnson ;  and  the  senatorial  group,  the  first  approach 
to  a  political  syndicate  we  have  had,  making  use  of 
the  inexperience  of  Grant  in  matters  of  civil  govern- 
ment, were  able  to  impose  on  him  their  point  of 
view.  Though  thwarted  in  isolated  instances  by 
Hayes  and  Garfield,  the  senatorial  government  did 
not  meet  a  powerful  rival  until  Mr.  Cleveland  became 
President.  In  the  fourth  period,  during  which  the 
observations  of  our  present  study  are  made,  the 
Senate  has  changed  in  complexion  through  the  intro- 
duction of  a  large  number  of  men  directly  connected 
with  great  economic  interests,  while  the  older  type 
of  lawyer-statesman  is  growing  scarcer.  The  inherent 
possibilities  of  senatorial  power  have  been  more  fully 
realized  than  ever  before.  The  mutual  relations  of 
the  various  powers  of  the  Senate  have  been  worked 
out  in  practice,  with  the  result  that  this  body  has 
achieved  a  distinct  political  primacy.  In  this  it  has 
-83 


AMERICAN  LEGISLATURES 


succeeded  not  only  through  the  direct  exercise  of 
powers  granted  to  it  by  the  Constitution,  but  through 
its  extra-constitutional  relations  with  the  national  and 
the  state  party  organizations,  and  through  the  indi- 
vidual connections  of  its  members  with  powerful  eco- 
nomic influences.  In  the  place  of  the  idea  that  the 
Senate  represents  the  sovereign  states,  there  has  been 
developed  the  thought  that  it  is  directly  representa- 
tive of  political  experience,  and  of  the  interests  of 
property, — that  is,  of  the  conservative  elements  in 
the  State.  As  we  are  now  in  an  era  of  unprecedented 
economic  development,  in  which  permanent  groupings 
of  vast  interests  are  being  effected,  leading  to  a 
hitherto  unsuspected  concentration  of  economic  power 
and  embodying  an  entirely  new  synthesis  of  economic 
forces,  it  is  evident  that  an  institution  in  which  these 
elements,  of  late  so  prominent,  are  primarily  repre- 
sented, and  which  is  in  close  touch  with  them,  will  be 
of  the  greatest  weight  in  the  settlement  of  future 
economic  and  social  relations. 
^  Thus  far  the  philosophy  which  inspires  the  action 
of  the  Senate  has  remained  as  individualistic  as  that 
of  the  Supreme  Court ;  and  indeed  there  are  perhaps 
even  fewer  dissentients  from  the  traditional  individ- 
ualistic doctrines  among  the  senators  than  among  the 
judges  of  our  federal  tribunals.  The  controlling 
point  of  view  of  the  Senate  is  still  distinctly  that 
which  requires  the  fullest  liberty  of  the  individual  to 
gain  wealth  and  power,  and  which  looks  with  suspi- 
cion upon  any  attempt  of  the  State  to  curtail  the 
rights  of  men  in  dealing  with  their  property.  No 
other  philosophy  could  for  the  present  be  expected  in 

84 


THE  SENATE 


a  body  composed  of  successful  men,  who  have  gained 
their  prominence  under  a  system  of  unrestrained  com- 
petition. And  it  is  not  surprising  that  they  often  shut 
their  eyes  to  the  fact  that  this  theory  has  become 
anachronistic  and  that  it  is  incongruous  with  the  ex- 
istence of  concentrated  economic  power  which  threat- 
ens every  opportunity  of  individual  enterprise.  It 
is  exactly  in  behalf  of  the  interests  and  activities  of 
these  large  aggregates  of  capital  that  the  individ- 
ualistic theory  is  at  present  invoked.  This  dominant 
point  of  view  lays  the  Senate  open  to  the  criticism  of 
being  too  favorable  to  the  unrestrained  power  of  con- 
centrated wealth,  and  of  not  weighing  impartially 
the  advisability  of  increased  governmental  control 
over  economic  agencies.  Conservative  and  intelligent 
criticism  of  the  Senate  will  not  attach  itself  to  the 
fact  that  its  members  are  connected  with  important 
economic  interests,  still  less  to  the  individual  wealth 
of  many  among  them,  but  rather  to  the  spirit  of  the 
Senate,  to  its  uncompromising  defence  of  class  in- 
terests. The  Senate  is  constantly  tempted  to  resort  to 
a  merely  obstructive  policy,  because  such  action  not 
only  displays  its  influence,  but  appeals  to  its  ideal  of 
conservatism.  Any  measure  which  in  the  remotest 
manner  trenches  upon  the  interests  of  concentrated 
wealth,  which  in  the  least  impedes  the  activities  of 
great  corporations,  has  a  hard  road  to  travel  in  the 
Senate.  No  matter  how  insistent  may  be  the  popular 
demand,  no  matter  what  expert  consensus  may  call 
for  such  legislation,  it  will  be  ignored  or  endlessly 
delayed  by  the  Senate,  and  if  allowed  to  pass,  will 
ordinarily  be  equipped  with  a  few  unobtrusive  amend- 
-  85 


AMERICAN  LEGISLATURES 


ments  which,  however,  are  often  efficacious  to  defeat 
its  main  purpose.  Should  this  tendency  prevail, 
should  the  Senate  allow  itself  to  become  chiefly  a  veto- 
ing agency,  the  result  will  be  equal  to  a  national 
calamity.  It  is  a  revolutionary  act  to  oppose  healthy 
growth,  to  shut  off  active  currents  of  development; 
and  the  Senate  which  by  its  high  position  is  called 
upon  to  mediate  between  classes  and  between  interests, 
is  in  need  of  a  broader  philosophy,  of  more  liberal 
temper,  than  many  of  its  recent  actions  indicate. 
Through  constantly  favoring  certain  interests,  it  would 
sharpen  existing  antagonisms,  and  might  ultimately 
threaten  the  bursting  of  constitutional  restraints  and 
the  attempted  creation  of  new  and  more  popular  au- 
thorities. Moreover,  the  Senate  ought,  from  its  own 
point  of  view,  to  consider  that  no  political  body  can 
retain  permanent  influence  and  power  through  a 
purely  negative  policy.  For  the  sake  of  the  preserva- 
tion of  the  usefulness  of  this  admirably  conceived 
political  institution,  it  is  to  be  hoped  that  the  Senate 
will  avoid  the  danger  of  becoming  more  and  more 
irresponsive  to  the  really  deep  needs  and  impulses 
of  the  people.  The  Roman  Senate  which  at  one  time 
came  near  to  fulfilling  every  ideal  of  temperate  and 
far-seeing  government,  irrevocably  yielded  its  own 
supremacy,  when  it  made  itself  the  instrument  of  an 
oligarchic  policy.  A  more  detailed  examination  of 
the  powers  of  the  Senate,  and  of  the  tendencies  of  its 
action,  will  make  clear  its  great  opportunities  for 
leadership,  as  well  as  the  dangers  which  beset  its 
future  development. 

The  Senate  has  the  power  of  giving  or  withholding 
86 


THE  SENATE 


its  consent  to  Presidential  appointments  to  office. 
This  function  was  originally  understood  to  be  the 
rather  negative  one  of  preventing  inadvisable^^  ap- 
pointments; in  the  words  of  Jefferson,  "the  Senate  is 
only  to  see  that  no  unfit  person  is  appointed. ' '  Speak- 
ing of  the  appointment  of  a  diplomatic  officer,  Jef- 
ferson divided  this  function  into  five  steps:  (1)  fixing 
the  destination,  (2)  determining  the  grade,  (3)  nomi- 
nation, (4)  confirmation,  (5)  commission.  Only  in 
the  fourth  step  does  the  Senate  participate.  It  has, 
according  to  this  earlier  view,  nothing  to  do  with  the 
original  selection  or  nomination  of  candidates.^  The 
present  practice  according  to  which  senators  in  most 
cases  determine  the  nomination,  came  into  regular  use 
under  the  weaker  Presidents  that  followed  Jackson. 
It  was  continued  during  the  Civil  War,  when  Lincoln, 
weighed  down  by  cares  of  state,  turned  over  matters 
of  patronage  to  the  senators  and  representatives ;  and 
ever  since,  the  control  of  federal  patronage  by  the 
Senate  has  been  quite  steady.  Under  the  rules  of 
senatorial  courtesy,  the  Senate  refuses  to  ratify  a 
nominee  opposed  by  the  senators  of  his  state  of  resi- 
dence. In  order  to  avoid  such  opposition,  the  Presi- 
dent is  obliged  to  consult  beforehand  the  senators  in- 
terested in  a  certain  appointment.  It  may  be  argued 
that  this  is  the  only  reasonable  custom,  as  it  is  iin- 
possible  that  the  President  should  be  acquainted  with 
the  qualifications  of  applicants  for  office  from  all 
parts  of  the  Union,  and  therefore  that  he  would  natu- 
rally seek  the  advice  of  men  more  familiar  with  local 

*  Jefferson,  ** Opinion  on  Powers  of  Senate/'  1790.    Works 
(Ford  ed.),  vol.  V,  61. 

.     87 


AMERICAN  LEGISLATURES 


affairs,  before  sending  in  the  nominations.  But  the 
roots  of  the  practice  lie  deeper.  Many  senators,  in 
the  decade  following  the  war,  came  to  realize  that  it 
was  essential  to  their  continuance  in  power  that  they 
should  control  the  political  organization  in  their  re- 
spective states.  Nor  were  they  slow  to  see  that  the 
readiest  means  of  control  lay  in  their  hands  through 
their  power  over  federal  appointments.  But  also  as 
senators,  members  of  a  legislative  house,  they  realized 
the  advantage  of  power  to  be  gained  by  keeping  a 
strict  control  of  the  political  preferment  that  can  be 
granted  by  the  Executive.  When,  however,  the  sena- 
torial group  directly  and  openly  attempted  to  make 
the  President  merely  an  executive  clerk  for  the  regis- 
tration and  reporting  of  senatorial  nominations,  they 
went  too  far,  and  the  Presidents  succeeding  Grant  re- 
belled against  this  practice.  President  Hayes  was 
supported  against  the  demands  of  the  Conkling  group" 
by  the  Democratic  senators,  and  President  Garfield 
appealed  successfully  to  the  people  and  legislature  of 
New  York  against  the  radical  attempt  of  Conkling  and 
Piatt  to  control  the  federal  patronage  in  that  state. 
During  the  administration  of  President  Hayes,  ninety- 
two  nominations  were  contested,  of  which  fifty-one 
failed  of  the  necessary  majority  in  the  Senate.^  This 
is  by  far  the  largest  number  of  objections  to  presiden- 
tial appointments  in  the  Senate  during  any  one  admin- 
istration. But  throughout  the  period  from  Grant  to 
Cleveland,  the  number  of  contested  cases  was  large; 
though,  through  Garfield's  victory  over  Conkling,  the 
principle  of  the  control  of  the  several  senators  over 
*Fish,  ** Civil  Service  and  Patronage,"  p.  204. 

88 


THE  SENATE 


the  patronage  of  their  respective  states  received  a  cer- 
tain limitation.  Though  there  have  been  no  attempts 
since  to  impose  this  policy  in  so  direct  a  manner  upon 
any  President,  it  has  nevertheless  remained  the  gen- 
eral practice  of  Presidents  to  consider  the  wishes  of 
the  senators  interested  before  sending  in  nomina- 
tions. During  the  period  under  consideration  the 
Senate  also  made  extensive  use  of  its  privilege  to  ask 
for  specific  information  in  regard  to  the  nominees. 
The  resolution  of  April  8,  1878,  which  asked  for  in- 
formation concerning  the  residence  of  nominees,  was 
a  part  of  the  policy  of  the  senators  to  retain  control 
of  nominations  which  in  any  manner  affected  their 
localities.  During  his  second  administration,  Mr. 
Cleveland  encountered  the  strenuous  opposition  of 
the  senators  from  New  York  to  the  nomination  of  Mr. 
Hornblower  and  later  of  Mr.  Wheeler  Peckham  for 
the  position  of  associate  justice  of  the  Supreme  Court. 
Unable  to  overcome  this  antagonism,  he  neatly  turned 
the  position  of  his  opponents  by  sending  in  the  name 
of  Senator  White  of  Louisiana,  whose  appointment 
was  immediately  confirmed  as  a  matter  of  senatorial 
courtesy.' 

During  the  period  of  senatorial  government  after 
the  Civil  War,  the  Senate,  under  the  tenure  of  office 
act  of  1867,  controlled  not  only  the  appointment  but 
also  the  suspension  and  dismissal  of  **  presidential " 
officials.  The  act  provided  that  the  suspension  of  an 
official   during   the   intermission   between   legislative 

*  There  have  been  several  cases  in  recent  years  of  the  des- 
tination of  appointees  being  changed  in  deference  to  the  wishes 
of  senators. 

•89 


AMERICAN  LEGISLATURES 


sessions  should  be  submitted  to,  and  ratified  by,  the 
Senate  at  the  next  succeeding  session,  in  default  of 
which  ratification  the  suspended  official  was  to  be  re- 
instated. After  Grant 's  election,  the  act  was  amended 
to  the  effect  that  in  case  of  a  suspension,  the  new 
appointment  should  be  ratified  or  a  new  nomination 
made  to  the  position  vacated.^ 

While  therefore,  under  the  law  of  1867,  the  former 
incumbent  is  only  conditionally  suspended,  and  will 
be  re-instated  in  case  the  Senate  refuses  to  concur  in 
his  suspension,  the  amendment  of  1869  leaves  the 
matter  of  suspension  entirely  at  the  discretion  of  the 
President,  and  confines  the  attention  of  the  Senate  to 
the  confirmation  of  the  new  incumbent.  The  logical 
consequences  of  this  amendment  were,  however,  not 
fully  drawn  until  Mr.  Cleveland's  struggle  with  the 
Senate  in  1887.  Mr.  Cleveland  had  removed  a  cer- 
tain official,  and  had  sent  the  nomination  of  his  suc- 
cessor to  the  Senate  for  confirmation.  The  Senate  at- 
tempted to  go  into  the  matter  of  the  removal,  still 
clinging  to  its  right  to  review  a  suspension  under  the 
tenure  of  office  act.  Various  committees  of  the  Senate 
made  demands  upon  executive  departments  for  in- 
formation concerning  the  removal.  Under  instruc- 
tions from  the  President,  the  transmission  of  the 
papers  in  question  was  refused.  The  Senate  finally 
passed  a  resolution  of  censure  upon  a  member  of  the 
Cabinet  for  not  furnishing  the  desired  information. 
This  gave  President  Cleveland  an  opportunity  for 

^ ' '  That  if  the  Senate  shall  refuse  to  consent  to  an  appoint- 
ment in  the  place  of  any  suspended  officer,  then  .  .  .  the  Presi- 
dent shall  nominate  another  person  to  said  session  of  the  Senate, ' ' 

90 


THE  SENATE 


stating  his  position  in  a  special  message,  in  which  he 
said : 

''The  requests  and  demands  which  by  the  score 
have  for  nearly  three  months  been  presented  to  the 
different  departments  of  the  government,  whatever 
may  be  their  form,  have  but  one  complexion.  They 
assume  the  right  of  the  Senate  to  sit  in  judgment  upon 
the  exercise  of  my  exclusive  discretion  and  Executive 
function,  for  which  I  am  solely  responsible  to  the 
people,  from  whom  I  have  so  lately  received  the  sacred 
trust  of  office/' 

The  President  further  argued  that  private  and 
confidential  papers,  having  reference  entirely  to  such 
Executive  acts  as  are  placed  by  existing  law  within 
the  discretion  of  the  President,  did  not  change  their 
nature  into  public  documents  just  because  they  are 
in  the  custody  of  a  public  department.  The  opposi- 
tion of  the  Senate  in  this  case  stood  upon  particularly 
weak  ground,  as  the  term  of  the  official  in  question 
had  expired  by  statutory  limitation  before  the  con- 
troversy arose.  The  final  outcome  of  the  matter  was 
that  the  Senate  retired  from  its  position  and,  in  De- 
cember, 1886,  passed  a  bill  entirely  repealing  the 
tenure  of  office  act  and  restoring  the  practice  of  the 
government  as  it  had  been  before  1867. 

In  connection  with  the  supervision  of  Executive 
work  by  the  Senate,  the  right  to  get  documents  and 
other  information  from  the  departments  is  of  great 
importance.  A  writer  on  the  subject  summarizes  his 
conclusions  as  follows : 

"Although  there  should  be  cogent  reasons  for  a 
compliance  with  the  congressional  demand  for  in- 
-    91 


AMERICAN  LEGISLATURES 


formation,  yet  compliance  would  be  a  matter  wholly 
within  the  Executive  discretion.  It  is  certainly  rea- 
sonable to  refuse  whenever  public  interests  or  even 
the  rights  of  individuals  require  it.  But  in  every 
case,  whether  or  not  a  reason  exists,  it  is  clear  that 
the  peculiar  structure  of  our  government  gives  the 
Executive  the  absolute  power  to  refuse  as  long  as  the 
struggle  is  carried  on  under  the  Constitution.  What- 
ever may  be  the  advantages  of  this  co-ordination  of 
forces,  it  certainly  brings  about  an  unfortunate  clash- 
ing of  authority.  It  indicates  an  amount  of  friction 
in  the  governmental  machinery  which,  even  if  un- 
avoidable, is  certainly  undesirable."^ 

President  Cleveland  successfully  maintained  the 
position  that  matters  pertaining  to  a  question  of 
Executive  discretion  need  not  be  submitted  upon  re- 
quest of  the  Senate.  He  also  drew  a  distinction  be- 
tween public  documents  and  matters  of  a  personal 
or  confidential  nature.  These  are  rather  broad  cate- 
gories, and  the  distinctions  between  them  have  not  as 
yet  been  carefully  worked  out.  But  it  would  indeed 
seem  that  the  Senate  is  powerless  in  its  demand  for 
information,  whenever  the  President  sees  fit  to  de- 
clare that  the  matter  is  one  of  Executive  discretion, 
or  that  the  materials  involved  are  of  a  personal  or 
confidential  nature.  The  only  recourse  of  the  Senate 
in  such  a  case  is  in  a  general  political  opposition  to 
the  President.  It  would  of  course,  in  general,  be 
impolitic  for  the  President  to  refuse  to  give  full 
information  to  Congress.    But  there  is  no  legal  ma- 

^  Mason,  E.  C,  ' '  Congressional  Demands  upon  the  Executive 
for  Information."    Papers  Am.  Hist.  Assn.,  V.  375. 

92 


THE  SENATE 


chinery  for  forcing  the  transmission  of  specific  infor- 
mation which  the  President  may  desire  to  withhold 
on  account  of  the  reasons  above  mentioned.  The 
prevalent  view  in  the  Senate  is  shown  by  repeated 
colloquies  in  the  extra  session  of  the  Senate  in  1905, 
in  which  a  number  of  prominent  senators  took  part. 
According  to  the  opinions  there  expressed,  the  Senate 
may  direct  any  of  the  Executive  departments  to  fur- 
nish it  information,  in  accordance  with  the  laws  by 
which  they  are  created,  always  excepting  the  Depart- 
ment of  State,  which  on  account  of  its  peculiar  func- 
tion and  the  law  from  which  it  takes  its  origin  is  not 
classed  with  the  other  departments  in  this  respect. 
While  the  Senate  "directs"  the  departments  to  fur- 
nish desired  information,  in  dealing  with  the  Presi- 
dent, it  "requests  .  ,  .  if  not  inconsistent  with  the 
public  interest."  This  distinction  in  form  is  of 
course  due  to  the  fact  that  the  President  holds  his 
powers  under  the  Constitution,  while  the  departments 
are  in  the  main  the  creatures  of  legislation.  Not- 
withstanding the  limitations  in  its  power  to  demand 
information,  the  Senate  is  nevertheless  in  a  position 
to  carry  out  a  very  strict  supervision  of  the  Executive 
departments.  Through  their  control  over  appropria- 
tion bills  and  administrative  legislation,  the  commit- 
tees of  the  Senate  which  deal  with  the  business  of  the 
departments  exercise  a  controlling  influence,  as  their 
ill  will  or  opposition  to  a  governmental  department 
may  very  materially  interfere  with  its  effective  work- 
ing. The  attempts  of  the  Senate  to  control  Executive 
discretion  by  specific  legislation  have,  however,  not 
always  been  well  conceived.  Thus,  in  1897,  the  Senate 
.    93 


AMERICAN  LEGISLATURES 


endeavored  by  an  amendment  to  the  sundry  civil 
appropriation  bill,  to  nullify  Mr.  Cleveland's  order 
regarding  forest  reserves  in  the  West.  In  this  in- 
stance the  Senate  allowed  powerful  and  grasping 
private  interests  to  outweigh  considerations  of  per- 
manent public  welfare.  The  House,  more  far-seeing 
in  this  matter,  defeated  the  Senate  amendment,  and 
thus  made  the  continuance  of  forest  preservation 
possible. 

The  masterly  conduct  of  foreign  affairs  during  the 
principal  period  of  its  history  is  one  of  the  first  titles 
to  fame  of  that  "Assembly  of  Kings,"  the  Roman 
Senate.  The  Senate  of  the  United  States,  through  its 
power  to  give  or  withhold  consent  to  treaties,  is  as- 
piring^ to  a  similar  control  of  the  foreign  affairs  of 
the  Nation.  Not  satisfied  with  the  rather  negative 
power  of  refusal  to  consent  to  treaties  which  it  may 
consider  unwise,  it  is  taking  a  far  more  active  and 
positive  part,  through  a  strict  supervision  by  its 
Committee  on  Foreign  Relations  of  the  negotiation  of 
treaties,  and  through  a  liberal  use  of  its  power  of 
suggestion  and  amendment.  The  idea  which  was  be- 
fore the  eyes  of  the  framers  of  the  Constitution  when 
they  established  this  particular  power  of  the  Senate 
was  that  of  an  executive  council,  a  body  which  the 
President  would  take  into  his  confidence  in  the  nego- 
tiations in  question.  In  the  earlier  period  of  our  his- 
tory and  until  quite  recent  times,  the  Senate  did  not 
attempt  to  take  the  actual  conduct  of  foreign  affairs 

^  Not  indeed  with  a  conscious  design  to  usurp  power,  but 
with  the  instinctive  tendency  of  every  public  body  to  extend 
the  boundaries  of  its  jurisdiction. 

94 


THE  SENATE 


into  its  own  hands.  During  the  first  decade  of  govern- 
ment under  the  Constitution,  the  relations  of  the 
President  to  the  small  council  which  the  Senate  then 
was,  were  of  an  intimate  nature;  and  even  when  the 
Senate  increased  in  numbers,  the  relations  between 
the  Senate  and  the  Department  of  State,  were  gen- 
erally close  enough  to  make  it  natural  for  the  former 
to  repose  free  confidence  in  the  secretary  of  state. 
He  was  accordingly  permitted  to  carry  on  foreign 
negotiations  and  to  mature  foreign  policies  and  trea- 
ties without  fear  of  having  his  ultimate  results  over- 
thrown by  hostile  action  in  the  Senate.  During  the 
first  decade  the  President  himself  several  times  atten- 
ded the  consultative  meetings  of  the  Upper  Chamber.^ 
From  Monroe's  secretaryship  of  state  in  1811,  down 
to  the  resignation  of  Mr.  Blaine,  that  position  was 
held  constantly  by  men  who  had  been  United  States 
senators,  with  the  exception  of  brief  interregna,  cov- 
ering altogether  less  than  one  and  a  half  years,  and 
with  the  exception  of  the  term  of  William  M.  Evarts, 
who  became  a  senator  later  in  his  career.  Since  the 
resignation  of  Mr.  Blaine,  an  entirely  new  system  has 
come  into  use,  Senator  Sherman  being  the  only  secre- 
tary of  state  who  had  also  been  a  member  of  the 
Senate.  Under  these  circumstances,  it  is  not  sur- 
prising that  there  should  have  been  more  friction 
between  the  President  and  the  Senate  on  foreign 
matters  than  existed  during  the  earlier  years  of  our 
national  life. 

Such  constant  friction  as  has  during  recent  years 

*  The  attitude  of  that  body  on  these  occasions  did  not,  how- 
ever, encourage  the  continuation  of  this  practice. 

-  95 


AMERICAN  LEGISLATURES 


existed  between  the  Senate  and  the  Department  of 
State  is,  in  fact,  unprecedented  in  our  national  his- 
tory. It  began  under  Mr.  Cleveland's  regime,  when 
the  Olney-Pauncefote  arbitration  treaty  was  rejected, 
partly  on  account  of  the  unpopularity  of  the  Admin- 
istration, partly  on  account  of  a  strong  political  oppo- 
sition to  any  arbitration  arrangements  with  Great 
Britain.  Even  under  McKinley,  notwithstanding  the 
unusual  relations  of  friendliness  between  that  Presi- 
dent and  the  Senate,  the  most  important  treaties  sub- 
mitted by  the  Department  of  State  were  rejected  or 
modified  by  the  Senate.  Again  it  proved  impossible 
to  have  a  British  arbitration  treaty  ratified.  The 
Hay-Pauncefote  canal  treaty  failed,  and  this  was  also 
the  fate  of  several  important  reciprocity  treaties. 
The  arguments  used  to  defeat  the  latter  give  proof  of 
the  occasional  narrowness  of  senatorial  statesmanship. 
One  of  the  strongest  objections  to  the  French  reci- 
procity treaty  urged  by  certain  Eastern  senators,  was 
that  the  cheap  jewelry  business  in  this  country  might 
be  thereby  threatened.  The  Senate  has  continuea  this 
critical  attitude  with  the  result  that  no  important 
treaty  has  been  allowed  to  pass  without  such  modifi- 
cation as  has  often  entirely  destroyed  its  original 
purpose.  The  only  exception  is  the  Treaty  of  Paris, 
in  the  formation  of  which  individual  senators  had 
taken  a  prominent  part.  The  Newfoundland  reci- 
procity treaty  was  ruined  through  the  interference 
of  special  interests.  The  quarries  and  mines  of  West 
Virginia  and  the  fishing  industry  of  Gloucester, 
Massachusetts,  were  successfully  defended  by  indi- 
vidual senators,  and  the  Senate  as  a  body  did  not 

96 


THE  SENATE 


seem  to  be  strong  enough  to  rise  to  a  broader  view  of 
the  general  welfare  and  to  force  special  interests  into 
a  proper  perspective. 

But  the  most  important  controversy  that  has  ever 
occurred  between  the  Senate  and  the  Executive  on 
the  matter  of  foreign  affairs,  is  that  concerning  the 
general  arbitration  treaties  (1905),  because  it  raised 
the  issue  as  to  the  proper  functions  of  the  Executive 
in  international  matters.  The  Senate  objected  to  these 
treaties  as  being  too  indefinite  in  statement,  and  as 
giving  an  altogether  too  wide  discretion  to  the  Execu- 
tive, which  might  virtually  be  used  to  deprive  the 
Senate  of  its  share  in  the  supervision  of  foreign  af- 
fairs. The  treaties  submitted  provided  that  "any 
matters  legal  in  their  nature  and  not  affecting  the 
honor  and  vital  interests  of  the  Nation,"  should  be 
submitted  to  arbitration,  under  "a  preliminary 
agreement  setting  forth  the  cause  of  the  controversy." 
It  was  urged  that  these  treaties  would  confer  upon 
the  President  the  power  to  determine  what  cases 
should  be  submitted  to  arbitration.  The  limiting 
phrases  used  are  so  general  in  their  nature  that  their 
application  depends  upon  the  interpretation  given  to 
them  in  any  particular  case.  Whereas  they  would 
leave  the  government  free  to  refuse  to  arbitrate  any 
controversy  on  the  ground  that  it  regarded  the  subject- 
matter  as  important  enough  to  involve  its  honor  and 
its  vital  interests,  the  laxity  of  the  limitations  would, 
on  the  other  hand,  enable  the  President  to  submit  to 
arbitration,  without  the  consent  of  the  Senate,  matters 
of  similar  importance  by  simply  declaring  that,  in 
his  opinion,  they  did  not  affect  the  honor  and  vital 
-    97 


AMERICAN  LEGISLATURES 


interests  of  the  Nation.  It  was  further  argued  by 
senators  that  the  limitation  requiring  the  controversy 
to  be  legal  in  its  nature  would  not  be  effective,  as  it 
would  be  difficult  to  conceive  of  an  international  con- 
troversy into  which  legal  matters  do  not  enter.  As 
far  as  the  wording  of  the  treaties  is  concerned,  there 
was  nothing  to  prevent  the  President  from  submit- 
ting to  arbitration  such  questions  as  those  concerning 
the  Newfoundland  fisheries,  the  Alaska  boundary, 
and  even  the  navigation  of  the  St.  Lawrence.  The 
only  restriction  upon  his  discretion  would  be  found 
in  such  general  political  opposition  as  might  arise  to 
any  particular  arbitration.  The  Senate  was  first- 
made  aware  of  these  dangers  to  its  powers  through 
the  objections  of  certain  Southern  senators,  who  ex- 
pressed the  fear  that,  under  the  treaties,  old  pecuniary 
claims  against  their  states  might  be  revived.  The 
Senate  therefore  voted  to  substitute  the  word  "treaty'' 
for  ''agreement,"  and  thus  made  it  incumbent  upon 
the  President  to  submit  to  the  Senate  for  ratification 
every  individual  matter  to  be  brought  before  the 
Hague  tribunal. 

There  was  a  precedent  for  this  action,  in  the  man- 
ner in  which  in  1900  the  Senate  had  amended  a  treaty 
with  Great  Britain  on  the  tenure  and  disposition  of 
real  and  personal  property.  The  treaty  provided  that 
any  British  colony  might  adhere  to  it  on  notice  of 
the  British  ambassador  at  Washington  to  the  secretary 
of  state;  and  any  American  possession,  upon  notice 
being  given  by  the  representative  of  the  United 
States  at  London,  ''by  direction  of  the  President." 
The  Senate  amended  this  so  as  to  read  "by  direction 
of  the  treaty-making  power  of  the  United  States." 

98 


THE  SENATE 


Considering  the  comparatively  petty  interests  in- 
volved in  this  amendment,  the  attitude  of  the  Senate 
was  certainly  lacking  in  that  liberality  which  ought 
to  prevail  in  the  mutual  relations  of  two  departments 
so  closely  allied  in  functions  as  the  Senate  and  the 
Executive. 

Thus  far  the  Senate  had  not  formally  relinquished 
the  right  of  calling  up  any  individual  case  of  Execu- 
tive action,  and  judging  of  its  propriety  on  its  own 
merits ;  diplomatic  action  through  agreements  had,  in 
fact,  taken  place  with  the  tacit  consent  of  the  Senate. 
The  Senate  feared  that  through  ratifying  the  arbi- 
tration treaties  in  their  original  form,  it  would  yield 
this  power  of  revision,  and  would  give  permanent 
legal  sanction  to  the  independent  action  of  the  Execu- 
tive in  settling  important  international  affairs  with- 
out reference  to  the  general  treaty-making  authority. 
On  the  other  hand  the  President,  who  had  through 
custom  acquired  the  practical  right  of  settling  minor 
matters  and  of  making  preliminary  arrangements 
through  Executive  agreement,  felt  with  justice  that, 
under  the  present  conditions  of  international  inter-  y 
course,  diplomatic  action  could  hardly  be  efficient, 
were  it  dependent  entirely  upon  treaties  lengthily  dis- 
cussed and  solemnly  acted  upon  in  the  Senate.  In  the 
consideration  of  the  arbitration  treaties,  no  practical 
solution  was  presented.  It  was  not  found  possible 
to  work  out  a  form  of  statement,  which  would  assure 
the  Senate  that  matters  of  real  importance  would  al- 
ways have  to  be  submitted  to  it,  and  which  would  at 
the  same  time  leave  to  the  President  the  necessary 
freedom  of  diplomatic  initiative. 

The  action  of  the  Senlite  on  the  arbitration  treaties, 
99 


AMERICAN  LEGISLATURES 


which  in  their  amended  form  were  not  accepted  by 
the  President,  cannot  be  taken  as  final.  The  demand 
for  the  arbitration  of  ordinary  international  con- 
troversies is  so  strong  that  some  means  will  un- 
doubtedly be  found,  by  which  a  general  treaty  will 
be  rendered  possible  and  acceptable.  A  system  under 
which  even  the  smallest  subject  of  international  liti- 
gation will  have  to  be  passed  upon  by  the  Senate, 
is  too  cumbersome  to  be  endurable ;  it  is  also  imprac- 
ticable from  the  point  of  view  of  the  Senate  as  it 
would  cause  the  expenditure  of  too  much  time  and 
effort.  The  objection  that  the  Constitution  does  not 
permit  the  Senate  to  entrust  to  the  President  the  sub- 
mission of  such  matters  to  the  Hague  tribunal,  is  not 
generally  considered  of  any  force.  But  the  Senate 
may  reasonably  demand  a  more  careful  definition  of 
the  classes  of  cases  which  the  President  shall  be  em- 
powered to  submit  to  arbitration  by  simple  agree- 
ment. The  previous  practice  of  our  government  would 
indicate  that  claims  of  private  persons  against  foreign 
governments  for  indemnities,  could  safely  form  one 
of  the  classes  thus  left  entirely  to  Executive  action. 
The  course  of  the  Senate  in  this  controversy  can  thus 
not  with  justice  he  denounced  as  entirely  unreason- 
able, however  reactionary  it  may  at  first  sight  appear. 
The  issue  between  the  Senate  and  the  President 
upon  the  arbitration  treaties  was  complicated  by  the 
diplomatic  action  in  respect  to  San  Domingo.  The 
San  Domingo  protocol  of  January  20,  1905,  which 
was  submitted  to  the  Senate  only  upon  its  special  re- 
quest, was  by  its  terms  to  have  gone  into  effect  twelve 
days  after  the  above  date.    The  fact  that  such  a  radi- 

100 


THE  SEFATl^, 


cal  departure  in  our  foreign  policy  should  have  been 
attempted  in  this  hurried  and  informal  manner 
brought  about  a  critical  and  searching  discussion  of 
the  practice  of  making  diplomatic  arrangements  with 
other  nations  by  means  of  protocols  and  agreements 
of  a  purely  Executive  nature  which  had  never  been 
submitted  to  the  Senate  for  its  ratification.  The  cus- 
tom had  gradually  grown  up  to  settle  less  important 
matters,  especially  claims  of  private  citizens  against 
foreign  governments,  by  such  agreements.  As  a  mat- 
ter of  fact  some  very  important  international  settle- 
ments were  made  in  this  manner.  The  distinction  be- 
tween a  treaty  and  an  Executive  agreement  as  worked 
out  in  practice,  is  that  a  treaty  is  a  solemn  act  con- 
firmed by  the  Senate,  which,  under  the  Constitution, 
becomes  the  law  of  the  land,  and  by  means  of  which 
the  important  foreign  relations  of  the  Nation  are  set- 
tled ;  whereas  an  agreement  is  properly  an  Executive 
act,  by  which  preliminary  arrangements  are  made  or 
minor  differences  are  adjusted.  This  is  evidently  a 
purely  formal  distinction,  which  does  not  in  itself 
clearly  define  the  proper  boundaries  of  either  manner 
of  action.  When  the  President  makes  an  Executive 
agreement,  he  himself  judges  of  the  relative  import- 
ance of  the  matter  involved,  and  though  the  practice 
rests  upon  the  tacit  concurrence  of  the  Senate,  very 
many  important  matters  were  in  fact  withdrawn  from 
senatorial  scrutiny  by  this  manner  of  procedure.^ 
The  following  are  among  the  more  notable  examples  of 
matters  settled  by  Executive  agreement:  the  limita- 

*For  the  history  of  this  practice,  see  J.  B.  Moore,  *' Treaties 
and  Executive  Agreements."     Pol.  Sc.  Quarterly,  XX,  385. 

'101 


AMERIOAI^  LEGISLATURES 


tion  of  armaments  on  the  Great  Lakes  (1817) ;  the 
cession  of  Horseshoe  Reef  on  Lake  Erie  to  the  United 
States  (1850)  ;  the  peace  protocol  with  Spain  assur- 
ing the  cession  of  Porto  Rico  (1898) ;  the  Peking  pro- 
tocol settling  such  highly  important  matters  as  the 
indemnity  to  be  paid  by  China,  the  rights  of  legations 
within  the  Empire,  etc.  (1901).  Under  special  acts  of 
Congress,  certain  Executive  agreements  with  other  na- 
tions may  be  made  concerning  the  postal  service,  reci- 
procity, discriminating  duties,  copyrights  and  trade- 
marks. The  settlement  of  pecuniary  claims  of  indi- 
viduals against  other  nations  has  been  quite  generally 
carried  out  by  Executive  agreements.  Of  this  nature 
were  the  Delagoa  Bay  arbitration  of  1891 ;  the  settle- 
ment of  the  Mora  claims  against  Spain  in  1886;  the 
submission  of  the  Pious  Fund  cases  to  the  Hague 
tribunal  in  1902— the  latter  being  the  direct  precedent 
for  Executive  action  in  connection  with  international 
litigation  before  the  Hague  tribunal;  the  settlement 
of  the  claims  of  the  San  Domingo  Improvement  Com- 
pany against  the  negro  republic  in  1902 ;  in  the  same 
year,  the  submission  of  American  claims  against  Ven- 
ezuela to  a  mixed  commission.  The  San  Domingo 
protocol  of  January  20,  1905,  is  altogether  the  most 
striking  instance  of  the  use  of  Executive  agreements 
in  international  affairs.  Under  this  proto'col  the 
United  States  undertook  to  guarantee  the  integrity 
of  San  Domingo,  to  adjust  the  pecuniary  claims  of 
foreigners  against  that  republic,  to  administer  its  fi- 
nances, and  to  assist  it  in  maintaining  order. 

The  failure  of  the  Senate  to  ratify  the  San  Do- 
102 


THE  SENATE 


mingo  treaty  left  the  President  in  a  position  where 
he  had  to  decide,  upon  his  own  responsibility,  how 
far  the  policy  of  that  treaty  should  be  carried  out 
by  him  without  the  consent  of  the  Senate,  at  least 
during  the  period  which  would  intervene  before  a 
ratification  could  be  secured.  The  President  did  in 
fact  adhere  to  the  main  lines  of  his  policy ;  he  recom- 
mended Americans  to  the  government  of  San  Do- 
mingo for  appointment  as  revenue  collectors;  he 
selected,  through  the  secretary  of  war,  an  American 
bank  in  which  to  deposit  the  55%  of  the  collected 
revenue  which  was  to  be  set  aside  for  the  benefit  of 
creditors,  and  he  gave  the  moral  support  of  the 
United  States  to  the  execution  of  these  measures, 
through  the  presence  of  American  warships  in  San 
Domingo  ports.  When  the  President,  in  1906,  was 
attacked  in  the  Senate  for  having  on  his  own  au- 
thority substantially  carried  out  the  policy  of  the 
treaty  which  the  Senate  had  refused  to  ratify,  his 
course  of  action  was  very  strongly  defended  by 
several  Republican  senators,  who  argued  that  the 
provisions  of  the  treaty  were  broader  than  the  action 
of  the  President,  and  that  he  had  been  simply  exer- 
cising his  own  constitutional  powers.^ 

The  indecisive  attitude  of  the  Senate  affords  great 
encouragement  to  the  strengthening  of  the  magis- 
terial power  of  the  President.  Whenever  the  ratifica- 
tion of  a  treaty  cannot  be  secured  of  the  Senate,  the 

^  See  these  very  interesting  discussions  in  ' '  Congressional 
Record,''  Fifty-ninth  Congress,  1st  Session,  pp.  1571,  2344. 


103 


AMERICAN  LEGISLATURES 


President  will  still  be  free,  in  many  cases,  to  follow 
out  the  same  policy  through  employing  his  purely 
Executive  powers,  such  as  the  command  of  the  Navy, 
the  direction  of  the  Diplomatic  Corps,  etc.  As  long 
as  the  President,  therefore,  has  a  majority  of  the 
Senate  on  his  side,  he  need  not  fear  to  pursue  a  very 
vigorous  foreign  policy;  and  he  will  be  able  to  carry 
out  most  of  his  plans  without  any  reference  to  the 
treaty-making  majority  of  two-thirds  in  the  Senate. 
He  may  not  be  able  to  secure  general  arbitration  trea- 
ties, but  precedent  allows  him  by  agreement  to  submit 
individual  cases  to  arbitration.  He  may  not  be  able 
to  get  a  treaty  like  that  with  San  Domingo  ratified, 
but  he  may  still  carry  out  a  large  part  of  the  policy 
embodied  in  it.  Reciprocity  arrangements,  which  in- 
volve the  exercise  of  the  taxing  power,  could  not 
of  course  be  easily  effected  without  the  use  of  the  full 
treaty-making  power,  and  even  to  the  latter  the  House 
has  always  objected  as  an  interference  with  its  right 
to  initiate  revenue  legislation.^  But  in  general,  as  will 
be  seen,  the  President  is  by  no  means  always  power- 
less, if  confronted  by  the  lack  of  a  two-thirds  major- 
ity in  the  Senate.  If  the  Senate,  as  a  body,  is  obsti- 
nate, dilatory,  and  merely  obstructionist  in  its  dealing 
with  foreign  policies,  the  President  will  be  supported 
by  public  opinion  and  by  an  influential  sentiment 
within  the  Senate  itself,  if  he  makes  the  most  of  his 
prerogatives.     The  virtual  acceptance  by  the  Repub- 

^  In  our  tariff  legislation,  the  President  has  been  given  a 
limited  power  to  make  reciprocity  arrangements.  See  Tariff 
Act  of  1897,  Sec.  3.  General  reciprocity  treaties  are  to  be 
** ratified  by  the  Senate  and  approved  by  Congress.'^     Sec.  4. 

104 


THE  SENATE 


lican  majority  of  the  President's  policy  in  San  Do- 
mingo, although  the  wisdom  of  that  policy  was  hon- 
estly doubted  by  many  senators,  cannot  fail  to  add 
great  strength  to  the  presidential  position. 

While  the  Senate  cannot  fairly  be  censured  for 
protecting  its  rights,  and  carefully  weighing  the  prob- 
able consequences  of  policies  proposed  by  the  Presi- 
dent, it  is  indeed  open  to  severe  criticism  for  its 
tendency  to  inaction,  for  withholding  its  advice  to 
which  the  President  is  entitled,  and  for  not  express- 
ing, after  a  reasonable  time,  its  consent  or  non-con- 
currence. Thus,  it  took  the  Senate  two  years  to  make 
up  its  mind  regarding  the  appointment  of  Dr.  Crum 
to  the  coUectorship  of  the  port  of  Charleston;  the 
South  American  arbitration  treaties  were  incubated 
for  nearly  three  years;  and  the  various  reciprocity 
treaties  have  never  been  promptly  acted  upon.  Sena- 
tor Cullom  declared  before  the  Reciprocity  Conven- 
tion in  Chicago  last  summer,  that  he  could  not  safely 
get  the  reciprocity  conventions  up  in  the  Senate,  say- 
ing that  to  defeat  them  might  offend  some  other 
nation.  The  Senate  has,  however,  not  generally  shown 
itself  very  delicate  of  the  susceptibilities  of  other 
nations,  and  the  reason  for  the  continued  suppres- 
sion of  these  treaties  probably  lies  in  another  direc- 
tion. It  is  to  be  feared  that  often  individual  senators 
lack  the  political  courage  to  go  on  record  on  such  a 
measure.  It  is  also  a  sign  of  the  deplorable  tendency 
on  the  part  of  Congress  in  respect  to  our  tariff  policy, 
not  to  judge  any  individual  proposal  upon  its  own 
merits,  but  simply  to  oppose  it  on  general  principles, 
as  likely  to  afford  a  precedent  for  further  action 
-    105 


AMERICAN  LEGISLATURES 


modifying  the  tariff,  and  thus  interfering  with  the 
cherished  rights  of  protected  interests. 

This  merely  negative  policy  of  control  does  not 
serve  to  increase  the  prestige  of  the  Senate.  It  indi- 
cates a  certain  weakness,  a  lack  of  grasp  and  states- 
manship, a  shrinking  from  responsibility,  when  the 
Senate  finds  itself  unable  to  come  to  a  decision  on 
such  vital  questions  of  the  day.  At  the  very  time 
w^hen  it  is  claiming  a  more  active  and  prominent  share 
in  the  management  of  our  foreign  affairs,  the  Senate 
often  exhibits  extreme  dilatoriness  in  actual  perform- 
ance. Its  experience  and  training  make  its  criticism 
on  matters  of  detail  exceedingly  valuable;  but  fre- 
quently it  sticks  in  detail,  apparently  unable  or  un- 
willing to  judge  a  question  upon  a  broad  basis  of 
statesmanship.  If  we  are  to  have  an  efficient,  con- 
sistent, and  dignified  foreign  policy,  a  large  dis- 
cretion ought,  indeed,  to  be  allowed  the  President 
and  the  Bepartment  of  State.  They  must  be  able 
to  seize  and  utilize  opportunities  of  the  day  that 
may  not  recur.  Taking  advantage  of  the  psycho- 
logical mement^in-  negotiations,  they  must  be  able 
to  count  upon  not  having  their  arrangements  over- 
thrown by  an  overcritical  and  jealous  Senate.  The 
President  on  the  other  hand,  whatever  diplomatic 
work  he  may  undertake,  should  have  before  his 
eyes  the  necessity  of  defending  his  course  of  action 
before  a  body  of  experienced  and  far-seeing  men, 
men  not  anxious  to  insist  upon  prerogative  in 
detail,  not  jealously  watching  every  step  of  the 
Executive,  but  nevertheless  judging  carefully  and 
critically  of  the  general  scope  of  his  policy.     Such 

106 


THE  SENATE 


relations  would  be  far  more  beneficial  to  our 
national  standing  and  welfare,  than  the  carrying  on 
of  foreign  affairs  through  ** policies"  and  agreements 
of  the  Executive,  under  careful  avoidance  of  senato- 
rial co-operation,  and  with  the  concurrent  attempt  of 
the  Senate  as  a  body  to  vindicate  its  prerogatives  by 
blocking  the  plans  of  the  Executive  whenever  possible. 
While  the  latter  is  not  an  exact  picture  of  the 
present  relations  between  Senate  and  President,  it 
still  indicates  what  may  be  the  result  if  certain  re- 
current tendencies  are  persisted  in. 

The  recent  modifications  in  the  procedure  of  the 
House  of  Representatives  have  resulted  in  a  decided 
increase  of  the  influence  of  the  Senate.  On  account  of 
the  strict  rules  of  the  House,  cutting  off  debate  and 
even  the  right  of  amendment,  full  discussion  of  a 
measure  is  rarely  ever  had  in  the  House,  and  there 
has  resulted  an  unmistakable  loss  of  the  sense  of 
responsibility  among  its  members.  The  prevailing 
tendency  is  to  pass  important  measures  without  due 
consideration,  and  often  in  a  full  consciousness  of 
their  defective  nature,  in  the  expectation  that  the 
Senate  will  straighten  out  and  complete  the  attempted 
legislation,  or  lay  it  at  rest  in  the  quiet  of  its  com- 
mittee-rooms. The  laudable  attempts  of  the  speaker 
and  the  committee  chairmen  of  the  House  to  hold  to 
a  regime  of  strict  economy,  has  given  the  Senate  a 
further  opportunity  to  exercise  its  influence.  Amend- 
ments to  appropriation  bills  that  would  have  no 
chance  of  passage  in  the  House  or  which  have 
been  ruled  out  on  a  point  of  order,  will  often  be 
offered  in  the  Senate,  through  the  friendly  offices  of 
•  107 


AMERICAN  LEGISLATURES 


some  member  of  that  body,  who,  through  such  favors, 
makes  individual  representatives  dependent  upon  his 
good  win.  Senate  debates  also  attract  far  more  at- 
tention than  the  meagre  discussions  which  take  place 
in  the  House,  because  important  political  issues  are 
still  hammered  out  in  the  smaller  body.  Though  the 
speeches  may  at  times  be  too  discursive  and  long 
drawn  out,  and  show  a  falling  away  from  the  old- 
time  reserve  and  dignity  of  the  Senate,  there  is  enough 
of  ability  and  experience  left  in  the  chamber  fre- 
quently to  give  its  discussions  a  real  importance  and 
an  undoubted  significance.  The  issues  of  recent  presi- 
dential campaigns  have  generally  received  their  most 
complete  and  adequate  treatment  in  the  Senate. 

A  controversy  of  long  standing  between  the  two 
houses  is  connected  with  the  introduction  of  bills 
raising  revenue,  which  by  the  Constitution  is  left 
entirely  to  the  House  of  Representatives.  The  at- 
tempted exercise  of  this  power  by  the  Senate,  in  a 
more  or  less  direct  way,  has  always  encountered  strong 
opposition.  In  1831,  Benton's  proposal  for  the  abo- 
lition of  the  duty  on  alum  was  defeated  in  the  Senate 
itself  on  account  of  constitutional  objections.  In 
1833,  Clay  argued  that  his  compromise  tariff  might 
originate  in  the  Senate  as  its  purpose  was  not  to  raise 
revenue  but  to  reduce  it.  Webster  opposed  this  con- 
struction, and  after  full  debate  the  Senate  bill  was 
laid  on  the  table;  it  was  subsequently  introduced  in 
the  House  as  a  bill  of  that  body.  In  1837,  a  Senate 
bill  authorizing  the  issue  of  treasury  notes  caused 
much  discussion  in  the  House.  Robertson  of  Virginia 
spoke  with  bitterness  of  the  long  continued  dictation 

108 


THE  SENATE 


of  the  Senate,  and  John  Quincy  Adams  said  that  for 
five  years  past,  not  one  of  the  many  revenue  bills  had 
originated  in  the  House.  The  chairman  of  the  Com- 
mittee on  Ways  and  Means,  Camberling,  favored  the 
bill,  arguing  that  it  was  a  mere  anticipation  of  reve- 
nue. But,  to  satisfy  constitutional  scruples,  the  Senate 
bill  was  dropped,  and  a  House  bill  of  similar  tenor 
was  taken  up  in  its  stead.  Senator  Evans,  in  1844, 
reported  a  resolution  that  the  bill  to  revise  the  com- 
promise tariff  should  be  postponed  as  it  could  not 
originate  in  the  Senate.  The  resolution  was  passed 
after  a  long  debate.  During  the  Civil  War,  a  Senate 
bill  providing  for  a  five  per  cent,  income  tax  was 
strenuously  opposed  in  the  House  by  Thaddeus  Stev- 
ens, with  the  result  that  the  Senate  receded  from  its 
position. 

After  the  Civil  War,  the  Senate  showed  less  readi- 
ness to  heed  constitutional  objections  to  its  action  on 
money  bills,  and  it  began  to  use  its  power  of  amend- 
ment in  such  a  radical  and  sweeping  fashion  as  to 
render  at  times  entirely  nugatory  the  right  of  intro- 
duction on  the  part  of  the  House.  A  striking  instance 
of  this  occurred  in  the  passage  of  the  tariff  act  of 
1872.  The  'House  had  passed  a  bill  to  repeal  certain 
duties  on  tea  and  coffee.  To  this  measure  the  Senate 
added  by  way  of  amendment  a  general  revision  of  the 
tariff.  So  strong  had  the  influence  of  the  Senate 
grown  by  this  time,  that,  notwithstanding  the  strong 
opposition  of  Garfield  and  other  House  leaders  to 
what  they  considered  high-handed  usurpation,  the 
Senate  prevailed  in  its  contention.  In  1878,  the  Senate 
bill  for  the  reduction  of  rates  of  postage  was  refused 
-   109 


AMERICAN  LEGISLATURES 


concurrence.  One  of  the  chief  objectors  at  that  time 
Was  Mr.  Cannon,  who  thus  early  began  his  career  as 
champion  of  the  rights  of  the  House.  A  new  and 
sweeping  assertion  of  senatorial  power  came  in  1883. 
A  revenue  tariff  had  been  quite  generally  demanded 
by  public  opinion,  and  a  commission  of  three  ap- 
pointed by  the  House  had  reported  in  favor  of  such  a 
policy.  But  the  protected  interests  were  so  influential 
in  urging  their  point  of  view  that  the  House  did  not 
effect  any  tariff  legislation,  but  contented  itself  with 
a  bill  reducing  the  internal  revenue.  The  Senate, 
however,  considering  inaction  on  the  customs  duties 
dangerous  at  that  time,  appended  a  complete  tariff 
lawjtojthe  House  bill.  The  Democrats  in  the  House 
shouted  ''prerogative''  with  much  force,  but  the 
Republican  members  took  their  cue  from  the  Senate 
and  allowed  the  bill  to  be  thrown  into  conference 
where  it  was  accepted.  Thus  did  it  come  about  that 
the  tariff  of  1883,  was  neither  originated  in  the  House, 
nor  even  discussed  in  that  body  in  regard  to  its 
provisions.^  In  1901,  a  House  bill  to  repeal  stamp 
taxes  imposed  during  the  Spanish  war  was  sent 
to  the  Senate.  The  latter  amended  the  bill  by  strik- 
ing out  everything  'after  the  enacting  clause,  and 
substituting  a  new  measure  reducing  the  taxes  on 
beer  and  tobacco.  This  instance,  beyond  being  the 
most  extreme  example  of  the  use  of  the  power  to 

^In  1888,  the  Senate  amended  the  Mills  tariff  bill  by  strik- 
ing out  everything  after  the  enacting  clause  and  substituting 
an  entirely  different  measure.  As  the  two  houses  at  this  time 
represented  different  political  parties,  their  respective  bills 
served  as  party  platforms  on  the  tariff  question. 

110 


THE  SENATE 


amend,  is  also  a  striking  indication  of  the  political 
tendencies  in  the  Senate;  for  whereas  the  House  de- 
sired to  remove  the  imposts  that  weighed  upon  the 
people  in  general  and  were  an  embarrassment  to 
business,  the  Senate  was  satisfied  with  reducing  taxes 
the  incidence  of  which  was  mainly  upon  a  few  power- 
ful interests.  These  successive  attempts  to  place  the 
origination  of  money  bills  in  the  hands  of  the  Senate, 
ultimately  aroused  a  strong  feeling  of  opposition  on 
the  part  of  the  House,  and  it  became  a  determination 
in  that  body  not  to  countenance  any  further  encroach- 
ments along  this  line.  When,  therefore,  in  1905  the 
Senate  added  to  the  agricultural  appropriation  bill 
an  amendment  relating  to  a  drawback  of  the  duty  on 
wheat,  which  would  have  affected  the  Dingley  act, 
the  House,  by  a  vote  of  263  to  5,  passed  a  resolution 
returning  the  bill  to  the  Senate,  on  the  ground  that 
the  amendment  contravened  the  requirements  of  the 
Constitution.  It  has  been  repeatedly  held  by  speakers 
of  the  House,  latterly  by  Carlisle  and  Reed,  that  in 
order  to  come  within  this  constitutional  provision, 
bills  need  not  definitely  propose  the  raising  or  the 
lowering  of  revenue,  but  that  if  they  in  any  way  af- 
fect the  revenue  or  its  administration,  they  come 
within  the  prohibition  of  original  action  by  the 
Senate. 

By  insisting  on  its  prerogative  to  have  the  sole 
power  of  introducing  revenue  bills,  the  House  cannot, 
however,  succeed  in  materially  reducing  the  actual 
power  of  the  Senate  over  that  kind  of  legislation. 
The  three  most  important  revenue  acts  passed  in  re- 
cent years  were  all  subjected  to  radical  modification 
-  Ill 


AMERICAN  LEGISLATURES 


by  the  Upper  Chamber.  It  is  well  known  how  the 
Wilson  bill,  passed  by  the  House  in  the  execution  of 
an  explicit  promise  given  to  the  electorate,  was  ut- 
terly transformed  by  the  Senate.  The  circumstances 
under  which  this  distinct  breach  of  party  pledges  was 
perpetrated  by  a  number  of  Democratic  senators,  did 
much  to  undermine  the  credit  of  the  Senate  among 
the  American  people.  Assured  of  its  tactical  posi- 
tion, the  Senate  would  not  listen  to  compromise,  but 
adhered  to  its  amendments  without  the  alteration  of 
a  line.  In  the  case  of  the  Dingley  bill,  the  House 
played  directly  into  the  hands  of  the  Senate.  As  we 
have  seen,  the  measure  was  forced  through  the  House, 
practically  without  debate;  whereupon  the  Senate, 
apparently  contrary  to  the  expectations  of  the  House, 
took  ample  time  for  the  thorough  discussion  and  the 
unstinted  amendment  of  the  bill.  Eight  hundred  and 
seventy-two  amendments  were  added,  to  almost  all 
of  which  the  House  agreed  in  conference. 

In  the  matter  of  appropriations,  the  Senate  is  not, 
as  it  formerly  was,  and  as  the  Constitution  intends  it 
to  be,  a  check  on  the  House,  but  habitually  increases 
the  appropriations  made  by  the  latter.  The  speaker's 
economy  drives  members  of  the  House  to  seek  the 
assistance  of  senators;  and  as  the  individual  senators 
can  acquire  power  by  showing  liberality  in  this  mat- 
ter, there  are  among  them  few  sticklers  for  retrench- 
ment. But  while  the  Senate  attempts  to  add  large 
sums  to  appropriation  bills,  it  has  on  the  whole  been 
fairly  reasonable  in  its  action  in  the  conference  com- 
mittees, as  is  shown  by  the  annexed  figures,  which 
give  the  original  amount  of  the  sundry  civil  appro- 

112 


THE  SENATE 


priation  bill  as  it  passed  the  House,  the  amount  added 
by  the  Senate  amendments,  and  the  ultimate  increase 
as  decided  upon  in  conference.^ 
» 

SUNDRY   CIVIL  APPROPRIATION  BILL 

A^^„„4.  ^j.  Increase  pro-         Ultimate  In-  AmnTiTit 

Year  ^X^m         posed  by  Senate      crease  decided  ^™aS* 

House  BiU         *^ Amendments     on  in  Conference  ^^  ^^^ 

1903  $79,849,949   $6,625,331   02,423,006   $82,272,955 

1904  56,241,210     2,658,000     1,599,000     57,840,210 

1905  65,292,080     2,447,270     1,771,670     67,063,750 

These  figures  show  that  the  increase  attempted  by 
senators  is  very  materially  reduced  by  the  Conference 
Committee.  Occasionally  the  House  has  instructed 
its  conferees  not  to  accept  specific  Senate  amend- 
ments. 

The  principal  characteristic— though  a  negative 
one— of  the  procedure  of  the  Senate,  is  the  total  ab- 
sence of  all  rules  in  any  way  limiting  discussion.  The 
use  of  the  previous  question  was  abolished  early  in 
the  history  of  the  Senate,  and  Clay's  attempt  to  re- 
introduce it  in  1840  did  not  succeed.  Since  then  the 
Senate  has  come  to  look  upon  the  complete  freedom 
of  discussion  as  its  most  cherished  attribute,  as  in- 
deed it  does  guarantee  the  dignity  and  importance 
of  each  individual  member.^ 

*  *  *  Congressional  Eecord, ' '  Conference  Committee  reports  for 
the  respective  years. 

2  The  rules  originated  by  Mr.  Hoar  also  protect  the  dignity 
of  members.  No  senator  in  debate  shall  impute  to  any  senator 
any  "conduct  or  motive  unbecoming  a  senator,"  nor  refer  of- 
fensively to  any  state  of  the  Union. 

8  .  113 


AMERICAN  LEGISLATURES 


The  unlimited  liberty  and  opportunity  of  speech 
has  however  been  repeatedly  abused  in  the  recent 
past,  and  turned  to  purposes  not  in  harmony  with 
the  idea  of  rational  deliberation.  The  silver  sena- 
tors were  the  first  to  make  unduly  extensive  use  of 
this  freedom  of  debate  to  tire  out  the  opposition  to 
their  measures.  Senator  Carter's  well-known  per- 
formance, when,  at  the  end  of  the  session  of  1901, 
by  means  of  a  harangue  of  thirteen  hours,  he  de- 
feated the  river  and  harbor  bill,  did  not  subject  him 
to  severe  censure,  because  that  bill  was  not  generally 
regarded  as  a  wise  measure.  But  his  action,  consid- 
ering his  motive— to  punish  the  Senate  for  not  hav- 
ing given  him  a  coveted  appropriation  for  irriga- 
tion purposes— would  certainly  not  bear  repeating 
very  often  without  seriously  discrediting  the  Senate. 
The  latter  was  in  fact  the  result,  when  Senator  Quay, 
himself  and  by  proxy,  with  interminable  talk  tried  to 
shut  out  other  measures  and  filibustered  for  his  state- 
hood bill.  Nor  did  Senator  Morgan's  probable  con- 
scientiousness in  his  objections  to  the  Panama  Canal 
free  from  censure  his  use  of  a  like  method.  When 
Senator  Piatt  of  Connecticut  poured  forth  everlast- 
ing discourses  on  Cuban  reciprocity,  it  was  with  the 
incidental  purpose  of  side-tracking  tariff  revision. 
Earnest,  explicit,  and  thorough  discussion  of  a  mea- 
sure has  become  a  favorite  method  of  the  Senate  for 
the  postponement  and  defeat  of  other  measures,  an 
open  attack  upon  which  would  be  considered  im- 
politic. What  Senator  Carter  did  in  1901,  the  rep- 
resentative of  South  Carolina  threatened  to  do  two 
years  later,  in  his  successful  attempt  to  force  upon 

114 


THE  SENATE 


the  Senate  a  claim  of  his  state  for  $47,000,  which, 
after  deduction  of  a  valid  federal  set-off  as  adjudi- 
cated by  the  proper  authorities,  actually  amounted 
to  34  cents.  This  extreme  instance  of  what  Senator 
Vest  called  blackmailing  the  Senate,  seems  to  have 
been  the  straw  that  broke  the  camePs  back.  It 
aroused  a  deep  sense  of  indignation  on  the  part  of 
the  House,  leading  to  the  firm  resolve  not  to  submit 
to  such  tactics  on  the  part  of  the  Senate  in  the  future. 
At  the  end  of  the  session,  af ter^  legislative  measures 
have  been  subjected  to  extensive  discussion  in  the 
Senate,  and  when  little  or  no  time  remains  for  action 
in  the  House,  the  conference  committees  meet  to  dis- 
cuss the  points  of  difference  between  the  two  houses. 
At  this  time  the  representatives  of  the  Senate  are  apt 
to  use  the  inabilitj^  of  that  body  to  close  discussion 
as  a  cudgel  to  be  h^ld  over  the  House  of  Representa- 
tives, in  order  to  force  it  to  accept  the  point  of  view 
of  the  Senate.  Their  arguments  upon  such  occasions 
take  the  following  form,  **This  is  the  best  we  can 
secure.  Should  we  introduce  an  enactment  comply- 
ing with  the  wishes  of  the  House,  it  would  inevitably 
be  talked  to  death  by  certain  senators  who  are  op- 
posed to  this  measure.  Therefore,  if  any  action  is  to 
be  had  at  all  we  must  adopt  the  compromise  proposed 
by  the  Senate.  *'  The  repeated  use  of  this  argument 
finally  drove  the  leaders  of  the  House  to  remon- 
strance; after  the  incident  of  the  claim  mentioned 
above  they  made  a  declaration  of  independence. 
Under  the  rules  of  the  House,  general  appropriation 
bills  are  not  allowed  to  include  changes  of  existing 
law.  But  the  Senate  has  no  such  rule,  and,  in  the 
•115 


AMERICAN  LEGISLATURES 


words  of  Mr.  Hull,  ''there  is  hardly  a  conference  re- 
port adopted  by  the  House  that  does  not  contain  legis- 
lation which  could  not  have  been  brought  in  under 
the  rules. ' '  ^  When  in  February,  1903,  the  Senate 
added  to  the  army  appropriation  bill  an  amendment  of 
the  law  concerning  the  retirement  of  officers,  it  was 
pointed  out  that  these  provisions  would  have  no 
standing  under  the  House  rules  and  Mr.  Cannon  de- 
clared, "In  this  body  close  to  the  people,  we  proceed 
under  the  rules.  In  another  body  .  .  .  legislation  is 
by  unanimous  consent."^  But  indignation  rose  to 
its  full  height,  when  the  South  Carolina  claim  had 
been  forced  down  the  unwilling  throats  of  the  power- 
less conference  committeemen  of  the  House.  On  this 
occasion  Mr.  Cannon  made  the  following  statement 
of  remonstrance: 

**  Gentlemen  know  that  under  the  practice  of  the 
House  and  under  the  rules  of  the  Senate  the  great 
money  bills  can  contain  nothing  but  appropriations  in 
pursuance  of  existing  law,  unless  by  consent  of  both 
bodies.  If  any  one  of  these  bills  contains  legislation, 
it  must  be  by  the  unanimous  consent  of  the  two 
bodies ;  and  the  uniform  practice  has  been,  so  far  as  I 
know,  the  invariable  practice  has  been,  with  the  ex- 
ception of  one  amendment  upon  this  bill,  that  when 
one   body   objected   to   legislation  proposed   by  the 

*The  House  itself,  as  we  have  seen,  is  not  always  strict  in 
its  adherence  to  the  above  rule;  but  at  any  rate  the  introduc- 
tion of  new  legislation  in  the  general  appropriation  bills  is 
confined  generally  to  provisions  in  extension  of  services  already 
sanctioned  by  law,  while  entirely  extraneous  legislation,  not 
germane  to  the  specific  subject  matter  of  the  appropriation 
bill,  would  not  be  permitted. 

2<' Congressional  Record,''  Vol.  36,  Part  3,  p.  2347. 

116 


THE  SENATE 


other  upon  an  appropriation  bill,  the  body  propiosing 
the  legislation  has  receded.  .  .  . 

''The  House  conferees  objected,  and  the  whole  de- 
lay has  been  over  that  one  item.  In  the  House  of 
Representatives,  without  criticizing  either  side  or 
any  individual  member,  we  have  rules,  sometimes  in- 
voked by  our  Democratic  friends  and  sometimes  by 
ourselves— each  responsiple  to  the  people  after  all 
said  and  done— by  whicH  a  majority,  right  or  wrong, 
mistaken  or  otherwise,  can  legislate. 

*'In  another  body  thet*e  are  no  such  rules.  In  an- 
other body  legislation  is  had  by  unanimous  consent. 
In  another  body  an  individual  member  of  that  body 
can  rise  in  his  place  and  j  talk  for  one  hour,  two  hours, 
ten  hours,  twelve  hours.  I  .  . 

**  .  .  .  Your  conferees  were  unable  to  get  the 
Senate  to  recede  upon  this  gift  from  the  treasury 
against  the  law,  to  the  state  of  South  Carolina.  By 
unanimous  consent  another  body  legislates,  and  in 
the  expiring  hours  of  the  session  we  are  powerless 
without  that  unanimous  consent.  .  .  . 

''Gentlemen,  I  have  made  my  protest.  I  do  it  in 
sorrow  and  in  humiliation,  but  there  it  is ;  and  in  my 
opinion  another  body  under  these  methods  must 
change  its  methods  of  procedure,  or  our  body,  backed 
up  by  the  people,  will  compel  that  change,  else  this 
body,  close  to  the  people,  shall  become  a  mere  tender, 
a  mere  bender  of  the  pregnant  hinges  of  the  knee,  to 
submit  to  what  any  one  member  of  another  body  may 
demand  of  this  body  as  a  price  for  legislation.''^ 

It  can  admit  of  little  doubt  that  in  its  opposition 

^^'Congressional  Eecord,*'  Vol.  36,  Part  3,  pp.  3058-9, 
March  3,  1903. 

117 


AMERICAN  LEGISLATURES 


to  the  use  of  the  liberum  veto  by  individual  senators, 
the  House  will  enjoy  the  full  sympathy  and  the 
hearty  support  of  the  American  people.  Nor  can 
the  members  of  the  Senate  themselves  desire  that 
such  a  practice  should  become  customary,  for,  though 
it  would  upon  occasion  give  individual  senators  great 
power,  it  would  soon  completely  undermine  the  credit 
and  authority  of  the  Senate.  It  is  a  distinctly  feudal 
principle,  by  which  the  desire  of  one  man,  however 
prominent,  may  defeat  the  action  of  the  State,— a 
principle  similar  to  that  which  resulted  in  the  political 
disasters  and  ultimate  downfall  of  Poland.  In  the 
United  States,  great  interests,  struggling  for  feudal 
privileges,  might  be  glad  to  entrench  themselves  be- 
hind the  liberum  veto  of  individual  senators  whom 
they  control.  But  the  more  statesmanlike  influences 
in  this  body  oppose  such  a  degradation;  and  they 
have  not  permitted  the  frequent  abuse  of  this  great 
discretionary  power,  which  has  been  confined  gener- 
ally to  the  defeat  of  minor  or  local  legislation.  The 
danger  however  is  present  and  calls  for  constant 
watchfulness  on  the  part  of  the  men  whose  aim  it  is 
to  increase  the  true  authority  and  dignity  of  the 
Senate. 

While  in  the  last  few  decades,  many  important 
measures  have  found  their  grave  in  the  Senate,  and 
the  Senate  has  attracted  attention  by  its  obstruc- 
tionist policy,  it  must  not  be  forgotten  that  most 
of  the  important  legislative  enactments,  not  only  in 
matters  of  revenue  but  of  general  policy  as  well,  have 
come  from  the  Senate,  or  have  there  received  their 
characteristic  form.    We  have  already  discussed  the 

118 


THE  SENATE 


history  of  the  recent  revenue  bills.  The  currency 
question  was  settled  by  the  silver  purchase  repeal  act ; 
the  legislative  solution  of  the  trust  problem,  as  far  as 
hitherto  attempted,  consists  of  the  Sherman  anti- 
trust and  the  Elkins  anti-rebate  laws;  the  govern- 
mental policy  of  our  dependencies  and  our  relations 
to  Cuba  were  determined  by  the  respective  Senate 
amendments  to  the  army  appropriation  bill  of  1901, 
to  which  the  House  gave  only  one  hour  of  discussion. 
The  Senate  also  defeated  the  Force  Bill,  a  greater  title 
to  credit  than  most  of  its  negative  action,  including 
the  defeat  of  the  Panama  legislation  in  1905  under 
the  leadership  of  Senator  Gorman.  The  railway  rate 
bill  of  1906  is  an  exception,  being  a  House  measure. 
But  its  discussion  in  the  Senate  was  careful  and  thor- 
ough, and  it  received  some  important  amendments, 
including  the  provision  for  a  broad  judicial  review. 

The  manner  in  which  the  experience  and  the  legal 
ability  of  the  Senate  are  used  in  a  detailed  criticism 
of  proposed  measures,  is  shown  by  the  treatment  of 
the  Philippine  railway  bill  in  December,  1904.  The 
bill,  as  originally  prepared  by  the  Insular  govern- 
ment and  introduced  and  passed  in  the  House  of  Rep- 
resentatives, provided  for  the  high  interest  guarantee 
of  five  per  cent,  on  the  capital  invested  in  construction, 
and  did  not  make  the  treasury  advances  an  effective 
lien  upon  the  property  of  the  railway  companies. 
By  the  Senate  amendments,  the  interest  was  reduced 
to  four  per  cent.,  and  the  rights  of  the  government 
were  effectively  protected  by  an  adequate  lien  with 
indefeasible  priority  over  other  claims.  Examples 
of  such  useful  amendments  of  the  details  of  legisla- 

119 


AMERICAN  LEGISLATURES 


tion  might  be  multiplied.  They  show  how  carefully 
the  Senate  scrutinizes  proposed  measures  and  how 
much  legislative  expertness  it  contains.  In  order  to 
play  a  determining  part  in  the  Senate  a  man  needs 
more  than  purely  ornamental  attainments;  in  fact, 
the  men  who  gain  prominence  in  that  body  must  be  in- 
ured to  the  hardest  kind  of  work.  There  are  of 
course  some  drones,  rich  men  who  look  on  the  Sena- 
torship  as  an  opportunity  for  personal  display  like  a 
box  at  the  opera,  and  who  care  little  for  the  real 
business  of  the  Senate.  But  they  fortunately  do  not 
as  yet  form  a  numerous  class.  Senator  Hoar,  speak- 
ing of  the  labor  imposed  upon  members  of  the  Senate, 
estimated  that  the  Committee  on  Claims  alone  re- 
quired of  him  more  individual  work  than  is  per- 
formed in  a  year  by  any  judge  of  a  state  court,  and 
that  the  amounts  dealt  with  were  greater  than  those 
involved  in  the  annual  litigation  before  any  state 
Supreme  Court.  The  state  judges  might  dissent  from 
this  estimate,  or  from  the  first  part  of  it,  but  at  any 
rate  it  indicates  the  impression  which  the  drudgery 
of  committee  work  made  upon  Mr.  Hoar. 

A  study  of  the  Senate  would  be  incomplete  were  it 
to  give  no  attention  to  those  relations  which  lie  out- 
side of  the  legislative  and  executive  functions  of  the 
Senate.  Through  the  connection  of  individual  sena- 
tors with  the  party  machinery  in  states  and  nation, 
and  also  with  powerful  economic  interests,  the  political 
influence  of  the  body  itself  is  greatly  enhanced.  The 
advantageous  position  of  the  senators  with  respect  to 
the  control  of  party  machinery  was  recognized  as  soon 
as  the  Senate  had  made  good  its  powers  over  the  fed- 

120 


THE  SENATE 


eral  patronage.  Professional  politicians,  whose  chief 
stock  in  trade  is  the  procuring  of  public  office,  soon 
developed  a  vivid  interest  in  the  senatorial  position. 
Before  long,  men  who  were  supremely  successful  in 
the  organizing  of  the  political  forces  of  the  State, 
claimed  for  themselves  the  high  honor  and  the  potent 
influence  of  the  senatorship ;  and  they  often  gave  the 
position  of  junior  senator  to  a  personal  ally  whose 
chief  political  qualification  consisted  of  liberal  cam- 
paign contributions.  The  direct  control  which  the 
party  machinery  exercises  over  the  state  legislatures, 
and  over  the  workings  of  the  caucus  system,  makes  it 
essential  to  the  senator,  if  he  be  not  himself  the  boss, 
at  least  to  court  the  good  graces  of  the  party  mag- 
nates. He  must  be  a  master  of  practical  politics.  In- 
deed, most  senators,  often  against  their  personal  lik- 
ings, find  that  the  major  portion  of  their  time  is  taken 
up  with  the  nursing  of  political  support  at  home.  This 
development  has  introduced  into  the  Senate  a  class  of 
prominent  politicians,  who  are  often  lacking  in  those 
qualities  of  statesmanship  which  the  traditions  of  the 
Senate  demand,  who  are  simply  shrewd  players  of 
the  intricate  game  of  local  politics,  and  who  have 
introduced  commercial  ethics  into  political  life. 
Nevertheless  it  is  apparent  that  the  power  of  the 
Senate  as  a  body  has  been  enhanced  by  this  direct 
connection  with,  and  control  of,  the  party  organiza- 
tion. The  dominating  influence  of  the  Senate  in  this 
matter  was  never  more  clearly  shown  than  in  the 
Kepublican  convention  of  1900.  Both  the  temporary 
and  the  permanent  chairmen  were  senators ;  the  four 
nomination  speeches  were  made  by  senators;  and 
.121 


AMERICAN  LEGISLATURES 


there  were  seven  senators  on  the  most  important  com- 
mittee, that  on  Resolutions,  which  drafted  the  national 
platform.  The  National  Committee  appointed  by  the 
convention  contained  five  senators,  among  them  Hanna 
(as  chairman)  and  Quay.  The  advisory  council  ap- 
pointed by  the  National  Committee,  had  three  sena- 
torial members,  among  them  Piatt  and  Depew;  while 
Hanna,  Quay,  and  Scott  were  members  of  the  Execu- 
tive Committee.  So  well  organized  was  the  senatorial 
group  at  this  time,  that  the  selection  of  the  Presiden- 
tial candidate  was  largely  determined  by  their  dis- 
cretion, both  in  1896  and  in  1900.  In  consequence, 
the  influence  of  the  Senate  over  the  Executive  was 
greatly  enhanced  during  this  period.  The  Senate  did 
not  take  quite  so  prominent  a  part  at  the  convention 
of  1904.  Mr.  Cannon  acted  as  permanent  chairman; 
but  Senator  Lodge  headed  the  Committee  on  Resolu- 
tions, and  the  Republican  National  Committee  of  the 
year  contained  six  senators.  Through  their  control 
of  the  party  machinery,  senators  have  gained  a  de- 
cided ascendancy  over  members  of  the  House  of 
Representatives.  In  some  cases  the  latter  owe  their 
political  life  and  prominence  almost  entirely  to  the 
sufferance  of  the  senator.  This  was  notably  true  of 
the  Pennsylvania  delegation  in  Congress  during  the 
Quay  regime.  But  even  where  the  congressman  has 
independent  political  strength,  it  is  advisable  for  him 
to  remain  yon  a  good  footing  with/ the  Senators,  as 
the  heads  of  the  party  machinery  in  his  state;  and 
especially  should  he  be  ambitious  to  enter  the  more 
select  chamber,  the  attitude  toward  him  of  the  senior 
senator  will  often  be  of  determining  influence. 

122 


THE  SENATE 


Besides  gaining  power  through  the  connection  of 
its  members  with  the  party  organization,  the  Senate 
has  further  increased  its  influence  through  the  fact 
that  senators  are  in  many  cases  in  close  touch  with 
powerful  economic  interests.  In  the  earlier  Senates, 
the  profession  of  law  constituted  in  every  respect  the 
dominant  element.  Men  of  broad  interests  and  sym- 
pathy, who  frequently  had  won  their  fame  through 
high  professional  attainments  or  through  brilliant 
gifts  of  oratory— the  lawyer-statesmen— were  an 
elite  of  sufiScient  distinction  to  establish  the  reputa- 
tion of  the  Senate  on  a  solid  base.  But  at  present, 
the  profession  of  law  itself  is  no  longer  so  broadly 
representative,  so  universally  trained,  and  so  con- 
stantly in  touch  with  the  masses  of  the  people,  as  in 
the  days  of  men  like  Clay,  Webster,  and  Carpenter, 
who  had  a  general  practice  such  as  is  now  carried 
on  only  by  the  lawyers  of  small  county  towns.  The 
lawyers  of  the  Senate  of  our  day  are  of  a  different 
type,  as  a  rule.  They  are  either  keen  men  of  business 
who  have  early  abandoned  the  practice  of  law  to  de- 
vote themselves  to  industrial  promotion,  or  they  are 
specialists  who  have  won  prominence  as  counsel  for 
great  corporate  interests.  The  point  of  view  of  these 
men  is  utterly  different  from  that  of  the  mid-century 
lawyers.  Their  technical  and  business  training  is  in- 
deed of  the  greatest  value  in  the  work  of  legislation. 
They  have  a  keen  eye  to  distinguish  the  feasible  from 
the  merely  desirable.  Their  detailed  criticism  of 
bills  and  of  treaty  drafts  is  informed  ^with  a  long 
experience  in  practical  business  matters.  There  are 
among  them  still  a  few  men  who  can  make  an  ad- 
,  123 


AMERICAN  LEGISLATURES 


mirable  constitutional  argument,  though  their  number 
is  decreasing. 

It  is,  however,  natural  that  the  senators  should 
look  upon  political  matters  from  the  vantage  ground 
of  their  special  experience  and  of  the  interests  with 
which  they  have  been  connected.  There  need  be  in 
this  no  suspicion  of  direct  corruption;  there  may,  in 
fact,  often  exist  a  conviction  of  absolute  impartiality. 
Yet  their  attitude  of  mind  and  of  temper  is  never- 
theless characterized  by  that  conservatism— often  ex- 
aggerated—of the  man  to  whom  is  intrusted  the  man- 
agement of  great  economic  interests.  In  some  in- 
stances, unfortunately,  the  representation  of  interests 
has  gone  beyond  a  mere  natural  bias  or  attitude  of 
mind.  There  are  senators  whose  controlling  purpose 
seems  to  be  to  protect  and  advance  the  interests  of 
particular  combinations  of  capital,  without  any  regard 
to  the  broader  principles  of  statesmanship,  or  even  to 
their  plain  duty  as  representatives  of  the  common- 
wealth. The  Senate  was  given  its  varied  and  exten- 
sive powers  under  the  Constitution  as  representing  the 
semi-independent  commonwealths  which  joined  to- 
gether to  form  the  Union.  Now  that  the  national  idea 
has  superseded  the  old  view  of  states '  rights,  it  is  to  be 
feared  that  these  powers  may  be  exercised  not  indeed 
under  instruction  from  the  state  legislatures,  but 
upon  dictation  from  great  economic  interests,  in  which 
the  local  and  the  national  character  is  often  com- 
bined, but  whose  aims  are  nevertheless  much  narrower 
than  those  of  a  commonwealth  ought  to  be.  It  ad- 
mits of  no  doubt  that  though  the  Senate  has  gained 
in  influence  through  its  connection  with  these  interests, 

124 


THE  SENATE 


it  would  inevitably  court  the  ultimate  loss  of  its 
power  were  the  individual  senators  generally  to  de- 
grade themselves  from  being  the  tribunes  of  a  com- 
monwealth to  a  mere  attorneyship-in-fact  for  certain 
powerful  corporate  interests. 

Much  hope  has  recently  been  expressed  that  the 
movement  for  the  popular  election  of  senators  may 
cause  an  improvement  in  the  personnel  of  the  Senate 
through  breaking  down  the  influence  which  party 
organization  and  corporate  interests  now  exert  over 
the  choice  of  legislatures.  Indeed,  in  the  primary 
election  laws  a  method  has  been  found  whereby,  with- 
out an  amendment  of  the  Constitution,  senators  may 
virtually  be  elected  by  popular  vote,  and  the  legisla- 
tures reduced  to  the  mere  registering  function  of  the 
Federal  Electoral  College.  Some  of  the  senators  re- 
cently elected  in  the  states  where  this  system  has  been 
introduced,  publish  with  pride  the  popular  majority 
by  which  they  have  been  ' '  elected. "  As  to  the  effect  of 
this  change  thus  far,  all  reasoning  can  merely  be 
guesswork.  Whether  it  will  result  in  developing  a 
broader  and  more  statesmanlike  leadership,  only  the 
future  can  show.  It  would,  however,  seem  that  it  will 
hereafter  be  easier  to  arouse  a  strong  and  effective 
public  sentiment  against  a  man  who  has  proved  him- 
self specially  unworthy  of  the  senatorial  office,  or  in 
favor  of  a  leader  who  has  the  qualities  of  mind  and 
character  which  are  apt  to  win  the  confidence  and 
admiration  of  the  people.  Whether  such  leaders  will 
always  be  safe  and  trustworthy  is  a  question  con- 
nected with  the  general  problem  of  democracy. 


125 


or 


■'JVcRSITY  l 


\^'' 


OF 


CHAPTER  IV 

THE  STATE  LEGISLATURES 


That  the  importance  of  state  legislatures  in  our  polit- 
ical system  is  not  generally  realized  by  the  American 
people,  is  apparent  from  the  scanty  attention  given 
to  the  business  and  procedure  of  these  bodies  and  from 
the  manner  in  which  Americans  affect  to  hold  in  slight 
esteem  everything  connected  with  them.  And  yet 
it  admits  of  no  doubt  that  for  the  proper  func- 
tioning of  our  complex  National  Government,  it  is 
very  necessary  that  the  state  legislatures  should  be 
efficient  and  respected.  We  have  so  thoroughly 
turned  our  backs  upon  the  theory  and  practice  of 
states'  rights  that  we  are  in  danger  of  going  to  the 
other  extreme,  and  of  seeking  political  salvation  in  a 
constant  expansion  of  the  sphere  of  the  central  gov- 
ernment. When  centralization  and  combination  are 
the  watchwords  of  the  era  in  economic  life,  it  is 
natural  to  conclude  that  all  social  and  political  func- 
tions and  activities  should  be  similarly  centralized. 
And  yet  when  we  contemplate  the  results  brought 
about  by  economic  centralization,  we  are  somewhat 
appalled  by  the  power  and  the  cruel  and  inconsid- 
erate action  of  the  machinery  thus  created,  and  there 
awakens  a  desire  that  we  might  avoid  a  condition  in 

126 


THE  STATE  LEGISLATURES 


which  the  entire  national  life  would  be  controlled  by 
a  small  group  of  men.  I  All  indiscriminate  decrying 
of  state  governments,  ana^especiaHy  of  state  legisla- 
tures, is  unfortunate  and  dangerous;  because  instead 
of  arousing  in  the  citizens  the  purpose  of  strength- 
ening and  purifying  the  local  institutions  of  govern- 
ment, and  thus  allowing  that  condition  of  national 
life  to  continue  in  which  political  experience  is  varied 
and  deepened  by  local  differences,  such  course  of 
action  induces  men  to  look  upon  the  organs  of  state 
government  as  hopelessly  inadequate,  and  to  center 
their  attention  and  their  purposes  entirely  in  the 
Federal  Government.  Even  though  centralization  has 
gone  far,  the  field  occupied  by  the  state  legislatures 
is  still  exceedingly  important,  and  the  very  fact  that 
legislative  experiments  are  rendered  possible  by  this 
system  and  that  problems  like  economic  control  can 
be  worked  out  in  smaller  areas  before  being  attempted 
on  a  national  scale,  renders  the  continued  strength  of 
local  institutions  highly  desirable.  The  legislation  of 
the  states  is  actually  of  far  greater  importance  to  the 
citizen  than  that  originated  in  Congress.  The  general 
law  under  which  we  live  is  entirely  under  the  control 
of  the  state  legislatures.  Such  momentous  matters 
as  the  relations  between  labor  and  its  employers,  the 
law  of  the  family  and  of  property  in  all  its  ramifi- 
cations, the  law  of  personal  injuries  and  of  crimes, 
are  all  within  the  state  legislative  field.  Moreover,  the 
last  decade  has  brought  a  remarkable  development  in 
the  administrative  functions  of  our  commonwealths,  far 
beyond  anything  that  could  have  been  foreseen  dur- 
ing the  earlier  era  of  our  history. 
-   127 


AMERICAN  LEGISLATURES 


Yet  unhappily  it  is  true  that  state  legislatures 
have  attracted  public  attention  and  caused  public 
discussion  not  so  much  on  account  of  the  importance 
of  their  functions,  or  the  greatness  of  the  interests 
with  which  they  deal,  as  on  account  of  the  bottom- 
less corruption  which  has  disgraced  so  many  of  them. 
Their  evil  fame  has  almost  outweighed  in  the  public 
mind  the  general  usefulness  of  these  institutions 
throughout  the  country.  It  is  indeed  time  that  a 
different  attitude  should  be  assumed  toward  these 
bodies,  that  more  intelligent  and  discriminating  at- 
tention should  be  given  to  the  efforts  of  their  mem- 
bers. It  has  become  almost  fashionable  to  talk  of 
state  legislatures  as  bodies  in  which  men  of  ability 
and  respectable  character  are  in  a  disappearing  minor- 
ity, and  yet  even  the  most  superficial  acquaintance 
with  actual  legislatures  will  immediately  reveal  the 
fact  that  they  are  very  fairly  representative  of  the 
American  people,  and  that  there  is  in  them  a  great 
deal  of  honest  effort  to  grapple  with  the  difficult 
problems  of  legislation,  misguided  though  this  effort 
may  be  at  times  for  lack  of  authentic  information,  and 
thwarted  by  certain  vicious  arrangements  in  our 
political  system.  The  state  legislatures  by  no  means 
deserve  to  be  treated  as  unimportant  or  cast  aside  as 
vitiated  beyond  hope.  Such  superficial  views  must 
give  way  to  an  intelligent  study  of  the  workings  of 
these  institutions,  to  a  sane  and  impartial  criticism ; 
and  before  all,  there  ought  to  be  a  sustained  effort 
to  support  the  men  who  are  with  honest  purpose 
struggling  for  equitable  and  effective  legislation,  by 
giving  them  countenance  and  by  raising  their  achieve- 

128 


THE  STATE  LEGISLATURES 


ments  to  that  plane  of  public  importance  which  they 
deserve. 

The  state  legislatures  differ  from  Congress  in  that 
they  do  not  exercise  specifically  delegated  powers  but 
have  a  general,  residual  legislative  authority.  In  the 
state  constitutions  their  powers  are  not  enumerated 
as  are  those  of  Congress  in  the  Federal  Constitution, 
legislative  power  being  conferred  upon  them  in  the 
most  general  terms.  The  essential  character  of  their 
authority  is  more  like  that  of  the  English  Parliament, 
but  on  account  of  the  division  of  powers  they  are 
_beset  with  limitations  from  which  that  body  is  free. 
Originally,  in  our  state  constitutions,  very  broad 
powers  were  accorded  the  legislatures,  powers  not 
even  limited  by  an  executive  veto.^  But  with  the 
growing  mistrust  of  legislatures  and  the  disappoint- 
ment with  the  results  achieved  by  them,  a  strong 
tendency  has  arisen  to  impose  upon  them  limitations 
which  cut  down  their  power  and  place  their  pro- 
cedure under  the  control  of  public  law.^  The  ways 
in  which  this  has  been  accomplished  may  be  roughly 
summarized  in  the  following  manner : 

First,  it  has  been  attempted  to  diminish  the  amount 
of  legislative  action,  by  limiting  the  duration  of  ses- 
sions and  making  them  less  frequent. 

Second,  by  defining  and  regulating  the  main  steps 

*  Except  in  Massachusetts  and  New  York.  Madison  spoke  of 
the  legislatures  as  omnipotent. 

2  The  discussions  in  the  Pennsylvania  Constitutional  Conven- 
tion of  1873,  and  in  the  New  York  convention  of  1894,  are 
especially  full  and  interesting  on  the  subject  of  legislative 
limitations. 


.129 


AMERICAN  LEGISLATURES 


in  procedure,  safeguards  have  been  provided  against 
hasty,  ill-considered,  and  one-sided  legislation. 

Third,  the  making  of  special  and  local  laws  has 
been  quite  generally  prohibited  where  a  general  law 
can  be  made  to  apply. 

Fourth,  the  veto  power  of  governors  has  been 
created  and  its  use  encouraged. 

Fifth,  certain  express  limitations  have  been  im- 
posed upon  the  legislative  power  with  respect  to  the 
subject  matter  of  laws,  and  large  fields  of  legislation 
have  been  occupied  by  constitutional  revisions  and 
amendments. 

Sixth,  all  these  things  have  led  to  far  greater  inter- 
ference with  legislative  enactments  on  the  part  of  the 
courts,  which  during  the  earlier  decades  of  our  na- 
tional life  were  exceedingly  anxious  to  avoid  any 
appearance  of  control  over  legislative  activities. 

The  above  express  limitations  we  desire  to  take  up 
and  discuss  in  this  chapter.  But  the  inherent  limita- 
tions of  legislative  power  under  our  system,  as  well 
as  those  expressly  imposed  under  the  Federal  Con- 
stitution, have  already  been  so  fully  discussed  and 
expounded,  that  we  shall  refer  to  them  only  inci- 
dentally.^ The  express  limitations  upon  legislative 
power  with  regard  to  the  subject  matter  of  laws,  will 
also  not  be  further  discussed  in  the  present  volume, 
which  deals  primarily  with  legislative  methods  and 
organization. 

It  is  natural  under  our  system  that  the  general 
organization  of  the  legislature  should  be  determined 

*  The  student  is  referred  especially  to  Cooley,  '  *  Constitu- 
tional Limitations." 


130 


THE  STATE  LEGISLATURES 


in  its  main  outlines  by  the  constitution.  Thus  it  is 
provided  in  all  the  states  that  there  shall  be  two 
houses,  a  Senate  and  a  House  of  Representatives.^ 
Their  membership  is  based  indeed  upon  the  same 
electorate,  but  the  Senate  districts  are  larger  and  the 
qualifications  for  election  to  that  body  are  usually 
somewhat  stricter.^  The  membership  in  the  Senate  is 
ordinarily  ^  so  arranged  that  this  body  like  the  United 
States  Senate  has  a  permanent  organization,  only  a 
certain  portion  of  its  members  being  chosen  at  any 
one  election.  A  number  of  constitutions  fix  the  com- 
pensation to  be  paid  to  members  of  the  legislature, 
and  where  this  is  not  done,  it  is  quite  usual  to  forbid 
an  increase  of  their  ^oluments  during  the  term  of 
office.  Where  the  compensation  takes  the  form  of  a 
per  diem  allowance,  it  is  customary  to  limit  the  dura- 
tion of  the  session,  or  at  any  rate  the  number  of  days 
for  which  compensation  may  be  drawn.*     This  limita- 

*In  some  states  the  designation  is  **  Assembly, "  in  others 
** House  of  Delegates.'' 

2  See  Chap.  VII  for  a  discussion  of  the  basis  of  representa- 
tion and  qualifications.         3  In  twenty-four  states. 

4  The  session  may  not  exceed  ninety  days  in  Colorado,  Mary- 
land, and  Minnesota;  seventy-five  days  with  pay  to  the  legisla- 
tors in  Tennessee,  seventy  days  with  full  pay  in  Missouri, 
sixty  days  with  pay  in  Texas;  sixty  days  in  Arkansas,  unless 
extended  by  a  two-thirds  vote  of  each  house;  sixty  days  ab- 
solutely in  Delaware,  Florida,  Indiana,  Kentucky,  Louisiana, 
Montana,  North  Carolina,  North  Dakota,  Khode  Island,  South 
Dakota,  Utah,  Virginia,  and  West  Virginia;  fifty  days  in 
Alabama,  Georgia,  Kansas  and  Nevada  and  forty  days  in  South 
Carolina  and  Wyoming.  It  is  obvious  that  most  of  these 
periods  are  too  short  for  a  careful  consideration  of  the  needed 
legislation.     Several  of  the  states  still  preserve  the  old  prac- 

131 


AMERICAN  LEGISLATURES 


tion  of  sessions  is  due  also  to  the  desire  to  oblige  the 
legislators  to  get  through  their  business  with  due  dis- 
patch and  to  save  the  state  from  the  evils  of  over- 
legislation.  This  motive  has  led  to  a  quite  general 
movement  toward  making  the  sessions  less  frequent. 
Whereas  formerly  annual  sessions  were  the  common 
practice,  at  present  only  six  states  (Georgia,  Massa- 
chusetts, New  Jersey,  Rhode  Island,  New  York,  and 
'South  Carolina)  allow  their  legislatures  to  meet 
every  year.  The  ordinary  system  is  to  have  biennial 
sessions,  but  in  two  Southern  states  the  aversion  to 
legislative  meddling  has  led  to  the  extreme  measure 
of  making  the  sessions  quadrennial.^  The  principal 
argument  of  those  who  favor  such  restriction  of  legis- 
lative activity  is  that  with  less  frequent  legislative 
sessions,  the  more  important  matters  will  occupy  the 
attention  of  the  legislators,  and  individual  members 
will  recognize  the  futility  of  advancing  pet  schemes 
of  a  merely  personal  or  local  interest.  But  even 
granting  that  the  quality  of  legislation  could  not  be 
improved  by  this  means,  at  any  rate,  it  is  argued, 

tice  of  allowing  a  session  unlimited  in  length  and  these  are 
usually  the  states  which  pay  members  of  the  Legislature  an 
annual  salary.  In  Massachusetts,  the  governor  may  prorogue 
or  adjourn  the  Legislature  at  any  time,  for  not  over  ninety 
days,  and  in  New  Hampshire,  he  may  adjourn  it  after  three 
months  of  the  session  have  passed.  Extra  sessions  are  usually 
called  by  the  governor,  as  he  sees  need,  and  are  frequently 
limited  in  length  by  the  state  constitutions  to  twenty,  thirty, 
or  forty  days. 

*  Mississippi  and  Alabama.  The  Legislature  meets,  however, 
in  the  interval  in  extra  sessions,  the  action  and  duration  of 
which  are  strictly  limited. 

132 


THE  STATE  LEGISLATURES 


we  shall  have  less  of  that  poor  quality  to  which  we 
have  been  accustomed.  It  is  hoped  that,  meeting 
more  rarely,  the  legislature  will  attract  greater  public 
attention,  and  thus  become  a  desirable  field  of  activity 
for  men  of  ability.  The  work  to  come  before  it  may 
be  to  a  certain  extent  prepared  by  administrative 
officers,  so  that  the  legislature  can  immediately  enter 
upon  the  discussion  of  specific  measures.  On  the 
other  hand,  it  is  urged  in  opposition  to  this  view  that 
the  attempt  to  shorten  sessions  and  render  them  less 
frequent  will  necessarily  lead  to  even  more  hasty 
legislation  than  we  have  had  in  the  past.  During 
the  short  time  available,  so  many  interests  will  be 
pressing  for  a  hearing  that  the  legislators  will  become 
helplessly  confused  and  will  in  the  end  vote  on  most 
measures  without  due  investigation.  Moreover  the 
continuity  of  experience  which  is  gained  by  more  fre- 
quent sessions,  will  be  lost  where  the  intermission  is 
too  long.  It  may  indeed  be  impossible  materially  to 
affect  the  quality  of  the  legislative  product  by  mere 
changes  in  the  length  and  frequency  of  sessions ;  and 
it  is  certainly  conceivable  that  the  annual  General 
Court  of  Massachusetts  may  legislate  more  carefully 
than  would  be  possible  in  the  rush  of  a  quadrennial 
session.  In  general,  however,  the  biennial  session  com- 
mends itself  to  the  judgment  of  the  American  people.* 


*When  in  1895-6  the  question  of  biennial  sessions  was  dis- 
cussed in  Massachusetts,  it  caused  the  greatest  political  con- 
troversy of  recent  decades  in  that  commonwealth.  Although 
the  business  interests  were  strongly  in  favor  of  biennial  ses- 
sions, the  old  democratic  town  meeting  spirit  of  Massachusetts 
asserted  itself  and  maintained  the  annual  session. 

133 


AMERICAN  LEGISLATURES 


The  distrust  of  legislatures  is  nowhere  more  strik- 
ingly apparent  than  in  the  detailed  provisions  in  rela- 
tion to  procedure  which  many  of  the  more  recent  con- 
stitutions contain.  The  purpose  of  such  constitutional 
enactments  in  regulating  and  defining  the  various 
steps  of  procedure  is  to  avoid  ill-considered  and  head- 
long action  and  the  abuse  of  legislative  power  by  nar- 
row interests  working  in  the  dark.  These  provisions 
are  not  only  interesting  in  themselves,  as  safeguards 
for  proper  legislative  procedure,  but  they  have  given 
rise,  one  might  say,  to  a  new  branch  of  jurisprudence 
in  the  attempt  of  the  courts  to  arrive  at  logical  rules 
for  their  enforcement.  In  this  the  courts  have  been 
but  partially  successful,  and  no  clear  and  definite 
principles  as  to  the  application  of  these  constitutional 
provisions  have  as  yet  been  developed.  Although  the 
provisions  themselves  are  apparently  simple  enough, 
their  administration  under  control  of  the  courts  is 
nevertheless  full  of  difficulties  and  contradictions. 

Most  of  the  constitutions  provide  that  no  law  shall 
be  passed  except  by  bill,  and  they  also  generally  pre- 
scribe the  form  of  the  enacting  clause.  In  states  where 
this  requirement  exists,  the  resolution,  being  less  for- 
mal and  lacking  the  enacting  clause,  cannot  be  used 
for  the  purpose  of  making  laws.  In  general  parlia* 
mentary  law,  the  purpose  of  the  resolution,  which 
ranks  below  the  bill  in  formal  dignity,  is  to  declare 
the  legislative  will  in  subsidiary  and  incidental  mat- 
ters, or  to  give  formal  expression  to  the  opinion  of 
the  legislative  body  on  some  matter  of  policy.^     In 

^  Mr.  Willard  in  his  *  *  Legislative  Handbook, ' '  summarizes 
134 


THE  STATE  LEGISLATURES 


political  theory,  the  resolution,  when  used  otherwise 
than  as  a  mere  expression  of  opinion,  is  really  a  legis- 
lative ordinance;  in  other  words,  an  administrative 
provision  proceeding  directly  from  the  legislature. 
Such  administrative  regulations  may  indeed  be  made 
by  resolution  even  in  states  where  no  law  can  be 
passed  except  by  bill,  but  in  general  the  scientific 
character  of  the  resolution  is  not  carefully  observed 
in  its  use  by  legislative  bodies.  In  certain  states 
(e.  g.  Massachusetts,  Maine,  South  Carolina,  as  well 
as  by  the  United  States  Constitution)  joint  resolutions 
are  required  to  be  submitted  to  the  executive  who  has 
the  right  of  veto,  as  in  the  case  of  bills,  but  their  use 
for  purposes  of  general  legislation  is  infrequent.^ 

the  various  purposes  for  which  the  resolution  may  be  used  as 
follows : 

a.  Incidental  to  legislation,  affecting  procedure,  or  the  action 
of  committees. 

h.  Expressing  approval  or  disapproval,  condolence,  thanks. 
Declaratory  of  policy. 

c.  Urging  special  action  on  national  representatives,  or  on 
executive  ofBlcials. 

d.  When  used  for  legislation,  it  is  generally  for  one  of  the 
following  administrative  purposes:  (1)  special  directions  to 
state  officials,  (2)  small  appropriations,  (3)  appointment  of 
commissioners,  (4)  joint  action  with  another  state,  (5)  exhi- 
bitions and  commemorative  observances,  (6)  administration  of 
the  state's  property,  (7)  small  contracts,  (8)  fixing  of  com- 
pensation, (9)  directions  as  to  a  vote  on  constitutional  amend- 
ments. 

^  The  matter  of  joint  and  concurrent  resolutions  was  consid- 
ered and  reported  on  in  1897,  by  a  Senate  committee  (Fifty- 
fourth  Congress,  2d  Sess.,  Senate  Eeport,  No.  1335).  "The 
practice  hitherto  has  been  to  deal  with  matters  which  are  of 
importance  merely  to  Congress  and  not  to  the  President,  which 

.     135 


AMERICAN  LEGISLATURES 


Another  provision  which  is  found  in  most  consti- 
tutions is  that  no  bill  shall  contain  more  than  one 
subject,  which  shall  be  clearly  expressed  in  the  title.^ 
The  reason  for  this  restriction  is  apparent.  A  clear 
and  expressive  title  is  required  so  as  to  give  specific 
notice  of  the  legislation  attempted,  both  to  the  legis- 
lators and  to  the  public.^  But  in  a  number  of  states, 
if  the  act  relates  to  more  subjects  than  are  expressed 
in  the  title,  as  much  as  is  so  expressed  will  stand, 
either  by  express  provision  of  the  constitution  or 
under  the'  decisions  of  the  courts.^  In  general,  the 
courts  have  been  very  liberal  in  their  construction  of 

are  mere  expressions  of  opinion,  or  regulations  of  congres- 
sional procedure,  by  concurrent  resolutions,  which,  unlike  joint 
resolutions,  are  not  submitted  to  the  President. 

**  Concurrent  resolutions  from  their  very  nature  require  the 
concurrence  of  both  houses  to  make  them  effectual,  and  if  the 
Constitution  in  Section  7,  .  .  .  has  reference  solely  to  the  form, 
and  not  to  the  substance  of  such  resolutions,  they  must  of 
course  be  presented  to  the  President  for  his  approval. 

''For  over  a  hundred  years,  however,  they  have  never  been 
presented.  They  have  uniformly  been  regarded  by  all  the  de- 
partments of  the  government  as  matters  peculiarly  within  the 
province  of  Congress  alone.  They  have  never  embraced  legis- 
lative provisions  proper,  and  hence  have  never  been  deemed  to 
require  Executive  approval. ' ' 

*In  most  of  these  constitutions  special  exceptions  are  made 
in  the  case  of  appropriation  bills  and  codifications. 

'The  provision  with  respect  to  the  title  was  first  used  in  the 
Georgia  constitution  of  1798.  It  is  believed  that  it  was  in- 
serted in  consequence  of  the  abuse  of  granting  away  large 
domains  under  the  Yazoo  act  of  January,  1795,  which  bore  the 
title,  **an  act  for  the  payment  of  the  late  state  troops.'' 
(Savannah  v.  State,  4  Georgia,  38.) 

3  Unity  V.  Burrage,  103  U.  S.,  447. 

136 


THE  STATE  LEGISLATURES 


the  requirement  of  an  expressive  title,  and  the  courts 
of  California  and  Ohio  have  even  held  that  the  pro- 
vision with  respect  to  subject  matter  and  title  is 
merely  directory,  and  does  not  render  void  laws 
passed  in  contravention  of  it.^  A  law  is  not  voided 
by  the  fact  that  its  title  is  general,  as  long  as  it  fairly 
describes  the  purpose  of  the  bill,  and  does  not  cover 
incongruous  provisions.  The  phrase  "and  for  other 
purposes  therein  mentioned,"  is,  however,  held  too 
vague  to  be  of  any  effect  in  validating  parts  of  a 
statute  which  could  not  be  comprehended  under  the 
more  specific  title  of  the  act.^  The  requirement  of 
unity  of  the  subject  matter  is  intended  to  prevent  log- 
rolling legislation,  as  when  various  incongruous  pro- 
visions representing  the  desires  of  special  interests 
are  united  to  be  carried  through  under  a  general  com- 
promise; it  also  prevents  the  saddling  of  a  bill  with 
provisions,  not  germane  to  it,  which  are  appended  to 
a  meritorious  measure  in  order  to  hide  their  weak- 
ness or  viciousness.^ 

The  constitutions  of  a  number  of  states*  require 
that  no  bill  shall  be  altered  or  amended  so  as  to 
change  its  original  purpose,  a  provision  which  would 

*  Washington  v.  Page,  4  Cal.,  388.  State  v.  Covington,  29 
Ohio  St.,  102. 

2  Not  so  in  Georgia,  where  this  phrase  is  treated  as  sufl&cient 
notice  to  avoid  surprise.    Martin  v.  Broach,  6  Ga.,  21. 

3  In  New  York  and  Wisconsin,  the  requirement  of  unity  of 
subject  matter  applies  only  to  private  and  local  bills.  In  many 
other  states  it  was  first  confined  to  this  class  of  legislation,  but 
has  subsequently  been  extended. 

*  Arkansas,  North  Dakota,  Pennsylvania,  Colorado,  Alabama, 
Wyoming,  Montana,  Missouri,  Texas,  Washington. 

.  137 


AMERICAN  LEGISLATURES 


prohibit  the  favorite  practice  of  some  legislative 
bodies  of  amending  a  bill  by  striking  out  everything 
after  the  enacting  clause  and  substituting  a  dilfferent 
measure.  The  form  of  amendments  is  quite  generally 
subjected  to  the  specific  limitation  that  no  law  shall 
be  revised  and  amended  by  reference  to  its  title  only, 
but  that  so  much  thereof  as  is  amended  shall  be  re- 
enacted  at  length.  It  is  of  course  not  necessary  that 
the  original  act  should  be  set  out  in  full,  but  the  sec- 
tion as  amended  must  be  given.  This  provision  is 
aimed  at  the  practice  of  amending  by  merely  citing 
the  words  to  be  changed  and  those  to  be  substituted 
without  giving  their  context.  This  custom  led  to 
serious  afbuses,  because  legislators  lacked  the  time  to 
look  up  every  reference  of  this  kind  and  to  trace  every 
amendment  proposed.  At  present  it  is  a  common 
practice  either  to  italicize  the  words  and  clauses 
which  have  been  changed  or  to  state  first  the  specific 
words  to  be  substituted  and  then  to  cite  the  entire 
section  as  amended.^  While  the  constitutional  pro- 
vision regulates  the  manner  of  making  specific  and 
express  amendments,  it  does  not  touch  implied  amend- 
ment through  laws  totally  or  partially  inconsistent 
with  previous  enactments.  Under  the  principle  that 
the  last  expression  of  the  legislative  will  prevails,  the 
courts  are  of  course  bound  to  enforce  the  later  in 
place  of  the  earlier  provisions.    Much  confusion  and 

*  E.  g.  Section  3  of  chapter  280  of  the  laws  of  1905  is  hereby 
amended  by  striking  out  the  words  ** shall  be,''  and  inserting 
the  words  ^'may  in  his  discretion  be,''  so  that  the  section  as 
amended  shall  read,  **The  governor,"  etc.  (giving  the  full 
text  of  the  section  as  amended). 


138 


THE  STATE  LEGISLATURES 


uncertainty  has  thus  been  introduced  into  our  legis- 
lation. But  it  would  be  difficult  to  prevent  this  by 
constitutional  requirement  alone. ^  Reliance  must 
here  necessarily  be  placed  upon  the  good  sense  of  the 
legislative  body,  and  the  expert  information  available 
to  it. 

In  order  to  prevent  the  crowding  of  the  last  days 
of  the  session  with  legislative  business,  several  states 
have  adopted  constitutional  provisions  prohibiting 
the  introduction  of  bills  after  a  certain  part  of  the 
session  has  expired.^  Restrictions  of  this  kind  have 
not,  however,  generally  met  the  approval  of  constitu- 
tional conventions  or  of  the  public.  It  is  felt  that  it 
is  better  to  allow  the  legislature  itself  to  set  a  time 
after  which  no  bills  shall  be  introduced,  except  under 
very  special  conditions.  It  is  occasionally  found  that 
legislation  of  a  certain  kind  is  needed  which  was  not 
thought  of  during  the  earlier  part  of  the  session.  The 
principle  of  these  provisions  is,  however,  undoubt- 
edly correct;  and  the  enforcement  of  strict  rules  in 
this  matter  is  highly  desirable,  as  it  prevents  the 
crowding  into  the  last  days  of  the  session  of  measures 

*  In  Nebraska,  though  the  constitution  contains  the  provi- 
sion that  '^no  law  shall  be  amended  unless  the  new  act  con- 
tains the  section  or  sections  as  amended,"  the  Supreme  Court 
has  nevertheless  held  that  "changes  or  modifications  of  exist- 
ing statutes  as  an  incidental  result  of  adopting  a  new  law 
covering  the  whole  subject  to  which  it  relates,  are  not  forbid- 
den by  this  section. ' '    De  France  v.  Harmer,  92  N.  W.,  159. 

2  E.  g.  Colorado,  after  thirty  days ;  California,  after  fifty 
days;  Maryland  and  Washington,  in  the  last  ten  days;  the  last 
three  days,  Arkansas  and  Texas.  A  similar  provision  in  Michi- 
gan has  recently  been  repealed. 

139 


AMERICAN  LEGISLATURES 


which  would  be  rushed  through  without  proper  con- 
sideration. Minnesota  has  a  provision  which  does  not 
»  allow  a  bill  to  be  passed  on  the  day  of  adjournment. 
This,  however,  simply  has  the  effect  of  shortening  the 
session  by  one  day  for  legislative  purposes;  the  last 
day  is  devoted  to  corrections  of  the  journal,  and  to  the 
passage  of  resolutions  and  memorials.  In  Indiana, 
there  is  a  constitutional  provision  against  allowing  a 
bill  of  the  legislature  to  be  presented  to  the  governor 
within  two  days  of  adjournment.  In  practice,  how- 
ever, bills  are  passed  up  to  the  last  day,  though  only 
such  as  the  governor  is  willing  to  consider ;  the  provi- 
sion therefore  simply  has  the  effect  of  giving  him  an 
absolute  veto  on  all  bills  passed  during  the  last  two 
days  of  the  session. 

It  is  a  very  common  constitutional  provision  that 
bills  are  required  to  be  read  by  sections  on  three  dif- 
ferent days.^  The  constitutions  generally  provide 
that  this  reading  at  length  may  be  dispensed  with  by 
a  vote  of  two-thirds,  three-fourths,  or  four-fifths  of 
the  members  present,  but  in  some  states  the  third 
reading  at  least  must  be  at  length,  and  in  these  not 
even  unanimous  consent  can  substitute  a  reading  by 
title  only. 

The  recent  tendency  in  constitution  making  has 
been  still  further  to  surround  parliamentary  pro- 
cedure with  various  restrictions  and  .safeguards.  As 
an  example  we  may  cite  the  provision  of  the  New 
York  constitution  of  1894,  Article  3,  Section  15 : 

*'No  bill  shall  be  passed  or  become  a  law  unless  it 


*  Twenty-eight  constitutions. 

140 


THE  STATE  LEGISLATURES 


shall  have  been  printed  and  upon  the  desks  of  the 
members  in  its  final  form,  at  least  three  calendar 
legislative  days  prior  to  its  final  passage,  unless  the 
governor,  or  the  acting  governor,  shall  have  certified 
to  the  necessity  of  its  immediate  passage,  under  his 
hand  and  the  seal  of  the  state;  .  .  .  upon  the  last 
reading  of  the  bill  no  amendment  thereof  shall  be  al- 
lowed.'* 

The  constitution  of  Kentucky  of  1891  regulates 
committee  reports,  and  requires  the  printing  of 
bills  before  passage,  as  well  as  the  formal  affixing  to 
an  enacted  measure  of  the  signature  of  the  presiding 
officer  of  each  house  in  open  session.  On  this  occasion, 
all  business  must  be  suspended,  the  bill  is  read  at 
length,  and  the  fact  of  its  having  been  signed  is  noted 
in  the  journal.  It  is  also  provided  that  if  a  committee 
refuses  to  report  on  a  measure,  any  member  has  the 
right  to  call  it  up  for  discussion  and  action.  In  Mis- 
souri, upon  the  occasion  of  the  formal  signing  of  the 
bill  by  the  presiding  officer,  any  member  may  enter 
a  protest  that  the  bill  has  not  been  passed  in  proper 
form.  If  supported  by  four  other  members,  a  record 
of  this  protest  will  be  appended  to  the  bill  when  it  is 
sent  to  the  governor  for  his  signature.  Provisions  of 
this  kind,  intended  to  secure  the  careful  considera- 
tion of  bills  and  their  proper  authentication,  occur  in 
many  among  ther  newer  constitutions.^    It  is  an  inter- 

*In  the  New  York  Constitutional  Convention  of  1894,  an 
amendment  was  proposed  providing  that  **no  bill  shall  be  pre- 
sented to  the  governor  unless  the  presiding  officer  of  each 
house  shall  have  first  certified  that,  in  the  passing  thereof,  the 
provisions  of  the  constitution  have  been  obeyed.*'     This  was 

.      141 


AMERICAN  LEGISLATURES 


esting  fact  that,  whereas  in  England  punctuation 
does  not  form  part  of  an  act  and  is  not  found  in  the 
original  rolls,  as  the  act  is  presumably  passed  as  read 
viva  voce;  in  the  United  States,  where  the  bill  passes 
not  as  read  but  as  printed,  the  enactment  is  held  to 
include  the  punctuation.  (Tyrrell  v.  The  Mayor,  159 
N.  Y.,  242.)  The  simplicity  and  directness  of  the 
English  statutes  is  to  a  certain  extent  due  to  the  fact 
that  the  wording  must  be  rendered  plain  without  the 
use  of  punctuation. 

In  order  to  prevent  the  passing  of  legislation  by  a 
minority  of  the  House,  the  constitutions  usually  pro- 
vide that  in  order  finally  to  pass  a  bill,  the  majority 
of  all  the  members  elected  must  assent  to  it.^  In  the 
case  of  bills  raising  revenue,  appropriating  money,  or 
incurring  indebtedness,  it  is  in  many  constitutions 
provided  that  the  assent  of  more  than  a  majority  of 
the  elected  members  is  necessary.  In  many  states,  it 
is  required  that  the  yeas  and  nays  upon  the  final  vote 
shall  be  entered  upon  the  journal.  In  others,  they 
must  be  so  entered  on  the  request  of  any  one  of  the 
members. 

This  brings  us  to  one  of  the  most  complex  and  con- 
fusing points  of  legislative  jurisprudence.  The  ques- 
tion ha^  arisen  whether  the  courts  in  applying  the 
law  of  the  state  are  bound  to  accept  as  final  the  en- 
rolled bill,  authenticated  by  the  presiding  officers  of 

objected  to  as  virtually  giving  the  veto  power  to  the  presiding 
officers,  and  it  was  urged  that  the  observation  of  the  consti- 
tutional procedure  could  be  secured  through  the  ordinary  rules 
of  the  houses. 
*  In  Kentucky,  at  least  two-fifths  of  the  elected  members. 

142 


THE  STATE  LEGISLATURES 


the  two  houses  and  signed  by  the  governor ;  or  whether 
they  may  go  behind  the  authentication  and  examine 
the  journals  to  see  whether  all  constitutional  require- 
ments have  been  fulfilled  in  the  passing  of  the  bill. 
On  this  question  the  courts  are  in  contradiction  and 
almost  hopeless  confusion.  It  was  originally  the  pre- 
vailing opinion  that  the  constitutional  provisions 
were  mandatory,  and  that  the  courts  could  go  back 
of  the  formal  authentication,  and  determine  from 
the  journals  whether  the  constitutional  provisions 
had  been  fulfilled.  But  this  opinion  has  of  late  been 
losing  ground,  so  that  at  present  the  courts  are  about 
evenly  balanced  for  and  against  the  conclusiveness 
of  the  enrolled  bill,  with  a  growing  tendency  toward 
the  former  alternative.  The  general  principles  in- 
volved and  appealed  to  by  the  courts  may  be  stated 
as  foUows.  On  the  one  hand  it  is  claimed  that  if  the 
specific  requirements  laid  down  by  the  constitution 
are  not  actually  fulfilled,  no  valid  legislation  can 
originate;  and  a  certificate  of  officials  cannot  render 
valid  an  act  which  is  void,  by  falsely  representing 
that  it  was  passed  with  the  due  formalities.  The 
courts,  it  is  argued,  are  therefore  bound  to  disregard 
such  enactments  when  it  clearly  appears  from  the 
journal  that  definite  constitutional  requirements  were 
not  complied  with.^ 

In  behalf  of  the  opposing  alternative,  it  is  urged 
that  the  Constitution  directs  its  commands  with  re- 

*  County  of  San  Mateo  v.  S.  P.  R.  R.  Co.,  8  Sawyer,  293. 
Spangler  v.  Jacoby,  14  111.,  298.  Simpson  v.  Union  Stock- 
yards Co.,  110  Fed.  R.,  802.  Opinion  of  Justices,  35  N.  H., 
579.    State  ex  rel.  v.  Mason,  155  Mo.,  486. 

.  143 


AMERICAN  LEGISLATURES 


spect  to  procedure  to  the  legislature  itself,  and  that 
the  latter  body  must  be  trusted  to  carry  out  these 
provisions  through  its  rules.  The  formal  attestation 
of  the  presiding  officers  of  the  houses  is  considered 
on  the  whole  better  evidence  of  authenticity  than  the 
journal,  which  is  kept  by  the  clerk,  an  inferior  offi- 
cial. The  surveillance  by  one  department  of  govern- 
ment over  another  is  not  considered  wise,  and  it  is 
believed  to  be  a  dangerous  principle  to  hold  that  an 
act  formally  enrolled  and  authenticated,  and  re- 
ceived by  the  people  as  the  sanctioned  will  of  the 
state,  could  subsequently  be  overthrown  by  a  refer- 
ence to  the  journals.^  It  will  readily  be  seen  that, 
while  the  opinion  that  constitutional  requirements 
must  be  actually  enforced  has  great  logical  cogency, 
nevertheless  the  later  opinion  has  in  its  favor  many 
practical  considerations.  The  practice  of  questioning 
a  law  which  has  stood  on  the  statute  books  for  years, 
because  someone  may  discover  in  the  journal  that  a 
constitutional  requirement  was  omitted  in  its  pas- 
sage, would  lead  to  a  general  unsettling  of  confidence 
in  the  legal  system.  The  public  interest  may  seem 
sufficiently  protected  through  the  mutual  watchful- 
ness of  members  of  the  legislature,  who  will  insist 
upon  the  fulfilment  of  constitutional  requirements 
in  the  case  of  measures  which  they  oppose.^  We  may 
also  generally  rely  upon  the  formal  authentication 

*  See  Field  v.  Clark,  143  U.  S.,  649.  Lafferty  v.  Huffman, 
99  Ky.,  80.  Purdy  v.  Commissioners,  54  N.  Y.,  276.  Sherman 
V.  Story,  30  Cal.,  279. 

2  This  is,  however,  by  no  means  always  the  case.  See  Chapter 
VIIL 

144 


THE  STATE  LEGISLATURES 


by  officials,  especially  when  it  is  surrounded  with  safe- 
guards similar  to  those  provided  in  the  Kentucky  and 
Missouri  constitutions.  So  the  wiser  course  would 
seem  to  be  to  rely  upon  the  enrolled  bill,  the  formally 
authenticated  measure,  as  implying  that  all  consti- 
tutional requirements  have  been  fulfilled. 

The  question  of  accepting  the  formal  authentica- 
tion of  an  act  as  final,  is  complicated  in  those  states 
in  which  the  cDnstitution,  beyond  merely  requiring 
that  a  journal  shall  be  kept,  provides  further  ^.hat 
the  yeas  and  nays  in  final  votes  on  a  bill  sha^l  be 
entered  upon  the  journal.  The  general  requirement 
of  a  journal  may  be  due  simply  to  the  purpose  of 
having  a  public  record  of  the  actions  of  the  legisla- 
ture, and  does  not  necessarily  make  the  journal  the 
sole  and  final  proof  of  the  passage  of  laws.  But 
when  any  specific  entry  is  directly  required  by  the 
constitution,  the  case  assumes  a  different  aspect,  and 
it  may  indeed  be  doubted  whether  a  law  can  be  con- 
sidered valid,  if  such  an  entry  has  not  been  made. 
The  Supreme  Court  of  North  Carolina  has  clearly 
stated  the  distinction,  that,  when  the  constitution 
contains  no  provision  requiring  specific  entries  in  the 
journal,  the  enrolled  act  cannot  be  impeached  by  the 
latter;  but  upon  the  presence  of  such  entries,  where 
required,  the  journal  alone  is  to  be  considered  con- 
clusive evidence.*  According  to  this  distinction,  the 
enrolled  bill  will  be  conclusive  proof  that  the  ordi- 
nary requirements,  such  as  three  readings,  commit- 
ment, a  majority  vote,  etc.,  have  been  complied  with ; 

*  Union  Bank  v.  Commissioners  of  Oxford,  119  N.  C,  214. 
(1899.) 

.145 


AMERICAN  LEGISLATURES 


and  the  journal  should  not  be  admitted  to  contradict 
these  presumptions.  But  if  it  could  be  shown  that 
the  journal  does  not  contain  the  record  of  a  vote, 
which  it  is  required  by  the  constitution  to  contain, 
the  act  would  have  to  be  considered  void,  although 
formally  authenticated.  It  may  be  urged  that  the 
protection  which  the  commonwealth  enjoys  under 
such  a  constitutional  provision  would  be  jeopardized 
under  a  different  interpretation.  Thus  a  bill  for  a 
bond  issue,  requiring  a  two-thirds  majority,  might 
upon  passing  by  a  simple  majority  take  the  form  of 
an  authenticated  act,  in  contravention  to  a  specific 
constitutional  provision.  It  may  be  noted  here  that 
some  of  the  leading  cases  in  favor  of  considering  the 
enrolled  bill  final,  have  refrained  from  pronouncing 
upon  this  point,  thus  leaving  it  open  for  the  above 
construction.  The  validity  of  the  enrolled  bill  was 
perhaps  strengthened  most  by  the  decision  in  Field  v. 
Clark  (143  U.  S.,  649),  and  yet  in  that  very  case  the 
court  says,  in  substance :  * '  To  what  extent  the  validity 
of  legislative  action  may  be  affected  by  the  failure  to 
enter  upon  the  journal  matters  expressly  required  by 
the  Constitution,  we  need  not  inquire,  as  this  question 
is  not  presented."  The  court  therefore  merely  de- 
cided that  enrolled  bills  cannot  be  impeached  for  any 
omission  in  the  ordinary  constitutional  procedure. 
In  the  famous  case  of  the  United  States  v.  Ballin 
(144  U.  S.,  4),  the  court  used  the  following  language: 
''Assuming,  though  without  deciding,  that  the  facts 
which  the  Constitution  requires  to  be  placed  on  the 
journals  may  be  appealed  to  on  the  question  whether 
a  law  has  been  legally  enacted,  etc."     The  United 

146 


THE  STATE  LEGISLATURES 


States  cases,  therefore,  hold  that  the  journal  is  not 
necessarily  the  best  or  conclusive  evidence  upon  the 
fact  whether  the  bill  was  duly  passed,  but  the  courts 
have  not  decided  that  where  the  Constitution  re- 
quires a  specific  entry  in  the  journals,  the  courts  may 
not  go  to  the  latter  to  ascertain  whether  the  entry  has 
actually  been  made.  But  the  point  thus  insisted  upon 
in  the  North  Carolina  decision,  and  left  open  by  the 
United  States  Supreme  Court,  has  not  been  so  clearly 
distinguished  by  the  courts  of  other  commonwealths. 
In  some  of  the  states,  whose  constitutions  require  spe- 
cific entries  of  votes,  the  courts  have  nevertheless  held 
that  the  enrolled  bill  is  in  every  respect  final  and  con- 
clusive ;  whereas  in  other  states  the  broad  rule  is  held 
that  the  courts  may  go  to  the  journals  to  ascertain 
any  omission  whatever  of  constitutional  requirements. 
It  is  this  latter  broad  principle  which  is  gradually 
being  modified  and  partially  abandoned.  But  the  law 
on  the  matter  is  still  in  a  state  of  great  confusion,  and 
even  in  individual  commonwealths  contradictory 
opinions  have  been  held  by  the  courts.* 

One  of  the  greatest  abuses  of  American  legislative 
life  has  been  the  excessive  amount  of  special  and 
local  legislation.  Not  only  is  a  just  and  scientific  order- 
ing of  legal  relations  impossible  under  a  system  in 
which  individual  cases  and  states  of  fact  are  con- 
stantly dealt  with,  not  on  the  basis  of  a  general  rule, 

^  In  some  of  the  states  where  the  broad  doctrine  of  reference 
to  the  journals  is  held,  it  is  limited  by  the  ruling  that  the  failure 
to  comply  with  the  constitution  must  appear  afl&rmatively  from 
the  journal,  and  that  where  the  latter  is  silent,  the  enrolled 
bill  cannot  be  impeached. 

•  147 


AMERICAN  LEGISLATURES 


but  through  exceptional  legislation  animated  chiefly 
by  a  desire  to  gain  special  privileges  and  protect  spe- 
cial interests.  But  this  practice  has  also  become  the 
chief  stronghold  of  corruption  in  our  legislative 
bodies,  and  one  of  the  principal  means  by  which  the 
political  boss  and  his  machine  make  their  power  felt 
by  dealing  out  or  withholding  special  privileges  and 
advantages.  Any  attempt  at  reform  of  legislative 
procedure  by  means  of  constitutional  provisions, 
therefore,  very  naturally  embraces  the  matter  of 
special  and  local  legislation. 

Legislative  enactments  are  divided  into  general 
acts  and  special  or  local  acts,  A  general  act  applies 
equally  to  all  persons  subject  to  the  authority  of  the 
state,  or  to  a  whole  class  of  persons,  defined  according 
to  some  essential  characteristic,  such  as  profession  or 
age.  Thus  a  law  prescribing  certain  safeguards  to  be 
observed  by  physicians  in  surgical  operations  would 
be  a  general  statute,  because  it  deals  with  all  persons 
who  may  undertake  such  operations,  or  if  looked  upon 
as  applying  to  surgeons  only,  it  applies  to  them  as  a 
class  engaged  in  some  particular  profession.  On  the 
other  hand,  an  act  is  local  or  special  when  it  applies 
only  to  a  specific  locality,  or  to  a  group  of  persons,  who 
do  not  really  form  a  separate  class  as  far  as  the  subject 
matter  of  the  special  law  in  question  is  concerned. 
An  act  exempting  all  physicians  from  the  payment 
of  taxes  would  be  considered  a  special  act,  because 
though  they  are  distinguished  from  other  citizens  in 
matters  of  their  profession,  this  distinction  has  no 
bearing  upon  the  general  duty  of  paying  taxes.  Thus, 
also,  the  imposition  of  a  separate  tax  upon  physicians 

148 


THE  STATE  LEGISLATURES 


would  be  a  special  law,  but  a  license  fee  imposed 
under  the  police  power  on  a  certain  business  or  pro- 
fession on  account  of  its  inherent  nature,  although  it 
may  operate  incidentally  as  a  tax,  will  not  be  special 
legislation.  Common  examples  of  local  or  special 
laws  would  be  acts  incorporating  a  city  or  village,  re- 
mitting fines  or  taxes  to  individuals,  allowing  an  indi- 
vidual corporation  an  exemption  from  taxes,  grant- 
ing a  divorce,  etc. 

A  number  of  the  state  constitutions  contain,  in 
some  form  or  other,  the  provision  that  whenever  a 
general  law  can  be  made  applicable,  no  special  law. 
shall  be  enacted.^  The  question  here  arises  whether 
this  injunction  is  directed  merely  to  the  conscience 
and  discretion  of  the  legislature,  or  whether  it  is  the 
duty  of  the  courts  to  declare  void  a  special  law,  when 
they  believe  that  a  general  law  might  have  been  passed 
covering  the  specific  case  involved.  The  prevailing 
opinion  is  that  this  matter  must  be  left  to  the  judg- 
ment and  discretion  of  the  legislature,  on  the  general 
principle  of  the  mutual  respect  due  between  coordi- 
nate departments.^  But  while  this  general  principle 
has  been  announced,  courts  have  in  individual  in- 
stances declared  that  where  it  is  clearly  apparent 
that  a  general  law  is   actually  in  existence  which 

*  Alabama,  Arkansas,  California,  Florida,  Kansas,  Maryland, 
Missouri,  Nebraska,  Pennsylvania,  Texas,  West  Virginia,  Vir- 
ginia, "Wyoming,  Illinois,  Colorado,  and  others. 

2  Owners,  etc.,  v.  People,  113  111.,  315.  Brown  v.  Denver,  7 
Colo.,  311.  In  some  states  (e.  g.,  Missouri  and  Minnesota) 
the  constitution  provides  that  the  question  as  to  whether  a 
general  law  could  h&ve  bee^  made  applicable  is  to  be  judicially 
determined. 

.  149 


AMERICAN  LEGISLATURE^ 


would  cover  the  case,  a  special  act  must  be  considered 
void.^  In  states  where  the  courts  have  taken  juris- 
diction, the  result  has  been  to  make  the  legislature 
rather  careless  of  the  constitutional  provisions,  leav- 
ing it  to  the  courts  to  determine  whether  a  given 
special  act  is  valid.  This  determination  can  of  course 
only  be  made  if  actual  litigation  arises,  which  is 
rather  infrequent  as  often  none  but  the  beneficiaries 
of  a  special  act  know  or  care  about  its  existence.  So 
that  in  such  states  there  is  very  much  special  legis- 
lation in  force  which,  if  attacked  in  the  courts,  might 
not  be  upheld. 

Beyond  this  general  provision,  local  and  special 
legislation  is  in  nearly  all  constitutions  forbidden 
with  respect  to  certain  specific  subjects.  In  some 
states  the  number  of  subjects  upon  which  special  leg- 
islation is  prohibited  runs  up  to  as  high  as  thirty .2 
There  is  a  great  variety  of  such  subjects,  but  the  fol- 
lowing are  most  commonly  found :  divorce,  court  pro- 
cedure, county  and  township  affairs,  incorporation, 
the  rights  and  privileges  of  corporations,  the  remit- 
tance of  fines  and  other  dues,  the  management  of  real 
estate  belonging  to  minors,  the  administration  of 
highways.  In  states  where  these  provisions  exist, 
the  above  subjects  can  be  dealt  with  only  by  general 
laws,  and  the  courts  are  bound  to  disregard  any  spe- 
cial acts  passed  in  connection  with  any  of  them. 

In  some  states  certain  requirements  are  laid  down 
with  respect  to  procedure  in  special  and  local  legis- 
lation.    Thus  in  Missouri,  notice  of  such  legislation 

"■  Coulter  V.  Eoutt  Co.,  9  Colo.,  263. 

2  Thirty -three  in  California,  thirty-one  in  Alabama. 

150 


THE  STATE  LEGISLATURES 


must  in  every  case  be  given  to  the  locality  or  commu- 
nity affected.  In  New  York  two-thirds  of  the  elected 
members  must  vote  in  the  affirmative  in  order  that 
any  appropriation  for  special  or  local  purposes  may 
pass.  The  energetic  and  widespread  agitation  for 
municipal  home  rule  during  the  last  decade  has  led 
to  the  adoption  in  many  states  of  constitutional 
amendments  prohibiting_special_legislation  in  munic- 
ipal affairs  and  requiring  the  legislature  to  pass  a 
general  municipal  incorporation  act.  In  New  York 
a  peculiar  system  was  adopted  in  1894.  The  consti- 
tution of  that  year  provides  that  every  bill  concern- 
ing any  particular  city  must  be  submitted  to  the 
mayor  of  the  city  affected,  who  within  twelve  days 
shall  return  the  bill  to  the  governor,  together  with  a 
certificate  stating  whether  or  not  it  has  been  accepted 
by  him.  If  the  bill  is  returned  **not  accepted''  it 
may  nevertheless  again  be  passed  by  the  legislature 
and  become  a  law  if  approved  by  the  governor,  but 
the  title  shall  in  such  case  state  that  it  was  **  passed 
without  the  acceptance  of  the  city."  The  governor 
retains  his  right  to  veto  a  bill  even  after  it  has  been 
accepted  by  the  city.^  In  Mississippi  and  Virginia  no 
special  law  can  be  acted  upon  until  the  Committe  on 
Private  and  Local  Legislation  has  made  a  written 
statement  as  to  whether  the  object  of  the  bill  can  be 
accomplished  under  general  law  or  by  court  pro- 
ceeding. 

We  have  already  alluded  to  the  principle  of  classi- 

*  This  system  was  by  no  means  satisfactory  to  the  advocates 
of  municipal  home  rule.  In  the  convention  it  was  termed  a 
ridiculous  result  of  so  much  effort. 

.       151 


AMERICAN  LEGISLATURES 


fication,  and  pointed  out  that  when  it  is  based  upon 
essential  characteristics,  it  preserves  the  character  of 
a  law  as  a  general  act,  although  it  may  refer  only  to 
a  comparatively  small  class.  The  question  arises,  can 
an  act  be  termed  general,  when  the  class  to  which  it 
applies  consists  of  but  one  individual  or  corporation. 
In  the  states  where  the  constitution  forbids  special 
acts  respecting  municipal  and  local  government,  the 
attempt  has  often  been  made  to  achieve  the  purposes 
of  special  legislation  by  so  classing  the  municipalities 
that  there  would  be  classes  composed  of  only  one 
city.  Thus,  for  instance,  an  act  may  be  made  to 
refer  to  all  cities  having  a  population  of  over  three 
hundred  thousand,  there  being  only  one  city  of  this 
size  in  the  state.  It  has  generally  been  held  that 
classification  of  this  kind  does  not  take  away  the 
special  and  local  character  of  the  legislation  at- 
tempted.^ Especially  is  this  true  where  the  descrip- 
tion is  such  that  other  towns  could  never  by  any 
possibility  come  within  it.  Thus,  for  instance,  a  law 
applying  to  cities  which  have  a  certain  population 
** according  to  the  last  census,"  where  there  was  only 
one  such  city,  was  held  clearly  special  and  ^ocal.^ 

*Devine  v.  Cook  County,  84  111.,  590.  Anderson  v.  Trenton, 
42  N.  J.  Law,  486.  Luehrman  v.  Taxing  District,  70  Tenn., 
425.  State  ex  rel.  Harris  v.  Hermann,  75  Mo.,  340.  In  1904, 
a  constitutional  amendment  was  adopted  in  Illinois  which  per- 
mits the  legislature  to  pass  special  laws  for  the  government  of 
the  city  of  Chicago.  After  passage  by  the  legislature,  all  such 
special  laws  must  be  submitted  also  to  the  vote  of  the  people 
of  Chicago. 

2  State  ex  rel.  v.  Judges,  21  Ohio  St.,  11.  State  ex  rel,  v. 
Ellet,  47  Ohio  St.,  90. 

152 


THE  STATE  LEGISLATURES 


The  system  through  which  in  Ohio  municipal  isola- 
tion was  attempted  through  evasive  classification, 
divided  the  eleven  most  important  cities  in  the  state 
among  two  classes,  subdividing  these  into  "grades/' 
Originally  Cincinnati  composed  the  first  grade  of  the 
first  class,  Cleveland,  the  second  grade,  and  Toledo 
the  third.  But  when  Cleveland  distanced  Cincinnati 
in  population,  corporate  powers  continued  to  be 
granted  to  it  by  its  former  description.  The  classifi- 
cation attempted  in  Ohio  was  so  clearly  illegal,  that 
the  Supreme  Court  overthrew  the  entire  system  of 
municipal  legislation,  and  forced  the  legislature,  in 
1902,  to  enact  a  general  code  of  municipal  govern- 
ment.^ The  courts  of  Pennsylvania  have  held  that  a 
city  may  reasonably  be  constituted  a  class  by  itself 
because  population  is  the  best  basis  for  the  classifica- 
tion of  cities,  and  because  it  is  not  impossible  that 
other  cities  may  grow  sufficiently  to  come  into  the 
class  in  question.^ 

Notwithstanding  the  constitutional  provisions,  local 
and  special  legislation  still  remains  one  of  the  chief 
sources  of  abuse  and  weakness  in  our  legislative  sys- 
tem.   Such  provisions,  while  they  may  check  the  evil, 

*  State  ex  rel.  Knisely  v.  Jones,  et  al.,  66  Ohio  St.,  453. 

2  Wheeler,  et  al.,  v.  Philadelphia,  77  Perm.  St.,  348.  But 
when,  in  1901,  the  machine  caused  the  Pennsylvania  legislature 
to  pass  a  bill  giving  it  control  of  the  Philadelphia  Board  of 
Tax  Eevision,  the  Supreme  Court  held  the  act  unconstitutional. 
By  its  terms  it  was  applicable  to  all  counties  which  were  then 
coextensive  with  cities  of  the  first  class.  The  wording  could 
refer  only  to  Philadelphia  County  and  was  held  to  come  within 
the  constitutional  prohibition,  as  by  its  very  terms  it  could 
never  apply  to  any  other  county.    200  Pa.  St.  629. 

.153 


AMERICAN  LEGISLATURES 


cannot  eradicate  it,  because  there  will  always  remain 
eases  which  will  have  to  be  dealt  with  specifically.  It 
is  therefore  highly  desirable  that  there  should  be 
elaborated  (a  quasi- judicial  procedur^  in  which  such 
matters  may  be  settled  on  their  merits  on  the  basis  of 
full  hearings  of  testimony,  and  with  proper  notice  to 
all  concerned.^  Referring  to  certain  evils  brought 
on  by  constitutional  limitations  on  special  legislation 
Governor  Gage  of  California  said  in  his  message  of 
1901,  '*  General  laws  are  often  passed  which,  in  fact, 
are  only  designed  to  benefit  particular  individuals  or 
localities,  or  to  relieve  special  conditions,  but,  though 
the  special  purpose  be  good,  it  often  happens  that  the 
very  generality  of  the  law  impairs  other  and  more 
material  rights.  ...  It  is  a  matter  to  be  regretted 
that  the  constitutional  provision  against  special  and 
local  legislation  is  so  far-reaching  in  its  effects.  While 
the  evil  that  was  intended  to  be  remedied  and  guarded 
against  .  .  ./was  a  very  serious  one,  still  the  new 
evil  of  the  enactment  of  general  laws  to  fit  special 
cases  is  more  serious,  and  it  would  be  well  for  this 
constitutional  section  to  be  so  amended  as  to  permit 
necessary  exceptions,  thereby  doing  away  with  this 
injurious  method  of  legislative  evasion." 

All  states  but  two  (Rhode  Island  and  North  Caro- 
lina) give  the  governor  a  share  in  legislation  by  be- 
stowing upon  him  the  veto  power.  This  veto  is 
however  not  absolute,  but  merely  suspensory.  In 
three  of  the  states,  Connecticut,  New  Jersey,  Ver- 
mont, the  vetoed  measure  may  become  a  law  by  being 

^  See  Chapter  X  for  a  discussion  of  the  character  of  private 
legislation. 

154 


THE  STATE  LEGISLATURES 


repassed  by  a  simple  majority  of  a  quorum.  In 
eight  states  a  majority  of  all  the  members  elected 
may  pass  a  bill  over  the  veto.  But  in  most  states 
a  larger  number  than  a  majority  is  required,  two- 
thirds  of  those  present  being  the  most  general  rule; 
in  a  few  states  it  is  three-fifths  or  two-thirds  of  the 
elected  members.  If  a  bill  having  been  sent  to  the 
governor  is  kept  by  him  for  a  certain  time  (from 
three  to  ten  days)  without  being  returned  or  vetoed, 
it  becomes  a  law.  If,  however,  adjournment  inter-  | 
venes,  in  eighteen  states  the  bill  will  not  become  law 
without  the  signature  of  the  governor,  so  that  he  can 
nullify  it  by  merely  ignoring  its  existence  (pocket 
jgeto) .  But  in  an  equal  number  of  states  the  consti-  * 
tution  provides,  that  if  kept  for  a  certain  time  after 
adjournment  ^  without  being  vetoed  by  the  governor, 
the  measure  shall  become  a  law  even  without  his  sig- 
nature. 

The  express  limitations  of  legislative  power  with 
which  we  have  dealt  show  a  strong  and  intelligent 
purpose  to  grapple  with  the  questions  of  legislative 
inefficiency  and  abuse,  and  it  cannot  be  doubted  that 
favorable  results  have  been  obtained  by  defining  the 
steps  of  procedure  and  limiting  the  power  of  special 
legislation.  But  a  complete  solution  of  legislative 
difficulties  will  not  be  looked  for  in  this  direction. 
It  must  be  sought  in  modes  of  action  and  arrange- 
ments through  which  the  positive  efiiciency  of  legis- 
latures and  of  individual  legislators  will  be  increased. 
How  the  sense  of  responsibility  and  self-respect,  as 

*From  five  to  thirty  days;  in  some  states  from  three  to  ten 
days  after  the  beginning  of  the  next  session. 

.      155 


AMERICAN  LEGISLATURES 


well  as  the  mastery  of  legislative  problems  on  the 
part  of  legislators,  may  be  developed,  we  shall  con- 
sider in  subsequent  chapters. 

An  important  function  of  the  state  legislature  is 
the  initiation  of  proposed  amendments  to  the  con- 
stitution. In  a  number  of  state  constitutions:  as 
those  of  Maryland,  Maine,  Minnesota,  Wisconsin, 
Virginia,  New  Hampshire,  and  New  York,  there  is 
provision  made  for  taking  the  sense  of  the  voters  as 
to  calling  a  convention  to  prepare  a  new  constitu- 
tion, either  at  fixed  intervals  of  time,  or  at  the  plea- 
sure of  the  General  Assembly;  in  all  states  but  one, 
provision  is  made  for  the  preparation  of  amendments 
through  the  instrumentality  of  the  legislature.  The 
consent  of  the  governor  is  usually  held  unnecessary 
when  amendments  receive  the  requisite  number  of 
votes  in  the  two  houses  of  the  General  Assembly. 
These  amendments,  when  proposed  by  the  legislature 
to  the  people  and  ratified  by  a  majority  of  the  popu- 
lar vote  cast  at  the  election  at  which  they  are  sub- 
mitted, become  an  integral  part  of  the  constitution. 
Without  that  ratification,  in  all  states  except  Dela- 
ware, the  action  of  the  General  Assembly  in  proposing 
the  amendments  counts  for  nothing.  In  South  Caro- 
lina an  amendment  ratified  by  the  electors  will  not  be 
valid  unless  it  is  also  accepted  by  the  subsequent 
legislature. 

The  proposition  of  amendments  may  be  made  in 
several  ways.  In  some  states,  a  majority  vote  of  the 
two  houses  is  all  that  is  necessary;  for  example  in 
Wisconsin,  Arkansas,  Missouri,  North  Dakota,  and 
South  Dakota.    In  other  states,  a  greater  proportion 

156 


THE  STATE  LEGISLATURES 


of  the  two  houses  must  favor  the  measure,  two-thirds 
being  the  prevailing  number,  as  in  Wyoming,  South 
Carolina,  Tennessee,  Texas,  Utah,  Washington,  Cali- 
fornia, Colorado,  Georgia,  Kansas,  Louisiana,  Maine, 
Michigan,  and  Minnesota.  In  Mississippi,  the  two- 
thirds  majority  must  be  cast  for  the  amendment  in 
votes  taken  on  three  separate  days.  A  three-fifths 
majority  is  required  in  Maryland,  Kentucky,  North 
Carolina  and  Ohio.  A  third  method  is  to  require  that 
two  successive  General  Assemblies  vote  in  favor  of 
the  same  amendment,  either  with  subsequent  ratifica- 
tion by  popular  vote,  as  in  Pennsylvania,  Oregon, 
Nevada,  New  Jersey  (in  which  state  a  special  election 
must  be  held  on  the  amendment).  New  York,  Indiana, 
Massachusetts,  Rhode  Island,  Virginia,  Connecticut, 
and  Iowa;  or  without  it,  as  in  Delaware,  in  which 
state  an  amendment  is  adopted  when  passed  by  a  two- 
thirds  vote  of  each  house  in  two  legislatures  succes- 
sively. In  Rhode  Island,  three-fifths  of  the  peopl*^ 
voting  at  the  same  election  must  favor  amendments 
in  order  to  ratify  them,  which  fact  makes  it  extremely 
difficult  to  amend  the  constitution  of  that  state.  In 
Tennessee,  once  in  six  years,  amendments  may  be  sub- 
mitted to  the  people,  after  they  have  received  a 
majority  vote  at  one  legislature  and  a  two-thirds  vote 
at  the  next  subsequent  session.  In  Vermont,  in  every 
tenth  session,  two-thirds  of  the  Senate  may  propose 
amendments  to  the  Lower  House  and,  if  it  concur,  the 
next  Assembly,  and  a  majority  vote  of  the  people,  may 
ratify  the  amendment.  In  Connecticut,  a  majority 
of  each  house  in  one  legislature  and  two-thirds  of 
each  house  in  the  next  are  needed  to  propose  amend- 
-     157 


AMERICAN  LEGISLATURES 


ments  to  the  people.  In  Massachusetts  the  proposed 
amendment  must  receive  the  affirmative  votes  of  a 
majority  of  the  senators  and  two-thirds  of  the  House 
of  Representatives  during  two  successive  legislative 
sessions. 


158 


^ 


CHAPTER  V 

LEGISLATIVE  COMMITTEES 

When  from  the  study  of  constitutional  limitations 
we  turn  to  consider  the  actual  organization  and  pro- 
cedure of  the  state  legislatures,  we  are  confronted 
with  a  frequent  lack  of  correspondence  between  the 
constitutional  and  legal  requirements  on  the  one 
hand,  and  the  methods  actually  pursued  on  the  other. 
In  no  department  of  the  government  is  there  such  a 
frequent  departure  from  the  normal  rules  laid  down 
by  constitutional  or  statute  law.  The  courts  are  ex- 
ceedingly punctilious  about  matters  of  form  in  their 
procedure,  and  administrative  officials,  too,  are  care- 
ful to  observe  the  proper  formalities  in  their  actions, 
so  as  not  to  give  rise  to  legal  doubts  of  their  validity. 
But  Jthe  supervision  of  the  courts  does  not  embrace 
the_details  of  legislative  procedure  beyond  the  very 
general  features  pointed  out  in  the  last  chapter,  and 
even  to  the  latter,  judicial  revision  is  sparingly  ap- 
plied. It  is  not  considered  wise  to  question  the  valid- 
ity of  legislative  acts  even  though  some  irregularities 
are  discovered  in  the  process  of  enactment.  As  we 
have  seen,  most  of  our  courts  accept  as  conclusive 
the  certification  of  the  presiding  officials,  and  none 
-    159 


AMERICAN  LEGISLATURES 


of  them  go  back  of  the  journal,  no  matter  how  much 
these  two  formal  expressions  of  legislative  action  may- 
be contradicted  by  oral  or  written  testimony.  On  ac- 
count of  this  principle  and  on  account  of  the  personal 
immunity  of  members  of  the  legislature,  the  actual 
occurrences  in  legislative  assemblies  and  committees^ 
are  not  ordinarily  subject  to  judicial  action  or  control.] 
The  observance  of  the  rules  of  procedure  is  therefore 
very  largely  dependent  upon  the  will  and  the  purposes 
of  the  majority  in  the  legislative  body.  The  leaders  do 
not  often  find  it  difficult  to  arrive  at  an'  understand- 
ing with  the  members  of  the  minority  under  which 
legislation  can  be  carried  on  largely  by  common  con- 
sent. This  lax  procedure  has  been  encouraged 
through  the  general  apathy  of  the  people  towards  the 
state  legislatures.  Not  greatly  interested  even  in  the 
larger  issues  before  these  bodies,  the  public  pays  no 
heed  whatever  to  matters  of  legislative  procedure, 
the  bearings  of  which  can  be  understood  only  by  those 
intimately  familiar  with  the  rules  of  parliamentary 
law.  So  it  has  often  come  about  that  in  states  where  the 
majority  party  has  a  strong  organization  or  machine, 
the  various  forms  of  procedure  have  been  treated  as 
fictions,  and  the  legislative  body  has  automatically 
registered,  in  the  last  days  of  the  session,  and  with  a 
downright  disregard  of  rules,  those  pieces  of  legisla- 
tion which  the  party  managers  had  agreed  upon. 
Thus  it  is  very  common  that  the  full  readings  of  bills 
'required  by  the  constitution  are  entirely  dispensed 
with,  that  the  committee  action  on  certain  bills  is 
treated  as  a  pure  formality,  that  objections  and  de- 
mands for  roll-calls  are  ignored,  and  even  that  votes, 

160 


LEGISLATIVE  COMMITTEES 


which  in  fact  were  insufiScient,  are  recorded  as  satis- 
fying the  legal  requirements. 

It  is  necessary  to  bear  in  mind  this  frequent  dis- 
parity between  the  rules  and  actual  procedure,  be- 
cause the  politician  often  looks  upon  the  rule,  not  as  \  P^ 
a  restricting  norm,  but  as  a  flexible  instrument  to  be 
bent  this  way  or  that  as  his  purposes  may  require. 
This  fact  makes  it  exceedingly  difficult  to  give  a 
general  account  of  legislative  organization  or  pro- 
cedure which  will  not  be  purely  formal  and  artificial. 
The  standing  rules  vary  sufficiently  in  the  different  ^ 
commonwealths  to  make  their  study  distractingly  in-  ^ 
tricate.  When  to  this  are  added  the  various  methods 
and  subterfuges  by  which  these  rules  are  evaded  or 
made  to  serve  purposes  other  than  those  for  which 
they  are  plainly  intended,  the  subject  resolves  itself 
into  the  treatment  of  every  motive,  method,  and  trick 
of  political  action.  We  cannot  here  hope  to  deal  at 
all  exhaustively  with  these  matters;  all  that  can  be 
attempted  is  to  point  out  the  general  character  of  the 
legal  organization  and  action  of  legislative  bodies,  to- 
gether with  the  principal  exceptions  thereto  in  indi- 
vidual commonwealths ;  and  to  follow  this  by  a  study 
of  the  main  lines  of  extra-legal  and  illegal  modifica- 
tion which  are  encountered  in  the  various  legislatures. 
In  those  states  which  are  comparatively  free  from 
machine  dictation,  and  in  which  powerful  interests 
do  not  weigh  heavily  upon  the  legislatures,  we  may 
expect  the  normal  forms  of  procedure  to  be  more  care- 
fully adhered  to.  But  as  to  the  machine-ridden  ^ 
states,  it  is  difficult  to  avoid  the  conclusion  that  in 
them  government  by  discussion  has  been  frequently 

11  '   161 


AMERICAN  LEGISLATURES 


reduced  to  an  empty  form ;  and  with  a  cynical  irony, 
the  legal  methods  of  procedure  have  been  turned  to 
alien  purposes,  so  as  to  make  the  legislative  body  a 
dumb  instrument  for  registering  the  arrangements  de- 
sired by  the  organization. 

The  state  legislatures  are  in  general  modeled  on 
\  Congress ;  or  it  might  be  more  correct  to  say  that, 
though  the  descendants  of  bodies  which  antedated 
Congress,  they  have  naturally,  as  the  Federal  Legis- 
lature has  become  more  and  more  important,  been 
profoundly  influenced  by  the  methods  of  procedure 
there  evolved.  The  lieutenant-governor,  as  presiding 
officer  of  the  Senate,  occupies  much  the  same  position 
as  the  vice-president,  although  in  individual  instances 
he  has  relatively  more  power.  The  legislative  speaker- 
ship has  at  some  distance  followed  the  development  of 
the  centralized  authority  in  Congress.  The  use  of  a 
complicated  committee  system,  and  the  governor's 
veto  complete  the  analogy.  Within  these  limits,  how- 
ever, wide  variations  occur.  The  committees  in  the 
Senate  are  commonly  appointed  by  the  lieutenant- 
governor.  In  a  few  states,^  they  are  elected  by  bal- 
lot of  the  senators.  In  the  more  numerous  house  the 
method  of  appointment  by  the  speaker  is  generally 
in  use.  Although  committee  positions  often  enough 
Ibestow  very  little  power,  the  early  part  of  a  legisla- 
tive session  is  rendered  interesting  to  the  members 
chiefly  by  combinations  and  speculations  about  the 
matter  of  committee  assignments.  The  time  of  ap- 
pointment is  frequently  delayed  for  various  reasons ; 
either  because  the  party  managers  desire  to  get  the 
^E.  g.f  Vermont,  Wisconsin,  Connecticut,  Illinois. 
162 


LEGISLATIVE  COMMITTEES 


situation  well  in  hand  before  completing  the  actual 
organization  of  the  House,  or  because  of  real  diffi- 
culties in  adjusting  the  desires  and  activities  of  new 
members/  or  for  some  other  purely  political  reason. 
_The  ideaL  method  according  to  which  men  are  placed 
on  committees  with  the  business  of  which  they  are 
especially  familiar,  has  to  give  way  in  many  cases  to 
the  purposes  and  plans  of  the  leaders  in  power  with 
respect  to  important  subjects  of  legislation.  Com- 
mittees to  which  such  bills  are  to  be  entrusted  are 
composed  with  great  care,  unless  the  organization 
considers  itself  strong  enough  to  treat  the  whole  com- 
mittee system  as  a  pure  formality.  An  example  of 
juggling  with  the  committee  system  was  afforded  in 
the  Illinois  Senate  in  1903.  The  three  committees 
through  which  most  of  the  political  business  was  to 
be  transacted  were  filled  entirely  with  organization 
Kepublicans,  and  a  few  Democrats.  The  opposition 
Republicans  were  put  principally  upon  such  appar- 
ently important  committees  as  Railroads  and  Corpo- 
rations, both  of  which,  however,  did  not  meet  during 
the  entire  session. 

It  is  a  notable  fact  that  during  the  last  few 
decades  both  the  number  of  committees,  and  the  aver- 
age of  membership,  have  increased  rapidly.  As  an 
example,  we  may  cite  the  case  of  Illinois.  In  the 
twenty  years  between  1877  and  1897,  the  number  of 
House  committees  increased  from  forty  to  fifty-eight, 

*Thus  in  Illinois,  in  1905,  the  House  committees  were  ap- 
pointed as  late  as  March  6.  The  House  contained  ninety  new 
members,  many  of  them  able  men,  not  easily  subjected  to  the 
ordinary  organizing  process. 

163 


AMERICAN  LEGISLATURES 


and  the  average  membership  from  twelve-and-a-half 
to  eighteen-and-a-half;  so  that  the  total  number  of 
committee  positions  was  more  than  doubled,  rising 
from  504  to  1062.  In  1877,  each  member  was,  on  the 
average,  on  three  committees ;  in  1897,  on  seven.  The 
largest  committee  in  the  former  year  had  seventeen 
members,  in  the  latter  thirty-five.  The  Senate  went 
even  beyond  this.  By  placing  upon  the  Railway  Com- 
mittee forty-one  members,  or  all  but  ten  of  the 
senators,  the  organization  reduced  the  whole  commit- 
tee system  to  a  sham.  A  similar  increase  in  numbers 
is  noticeable  in  more  than  one-half  of  the  states.  It  is 
due,  on  the  one  hand,  to  the  desire  of  members  for 
opportunities  to  gain  distinction  and  influence;  on 
the  other,  to  the  discovery  that  large  committees  lend 
themselves  more  readily  to  the  uses  of  the  political  or- 
ganization. This  increase  in  committee  membership  has 
been  most  noticeable  in  states  where  the  party  organ- 
ization is  strong.  Committee  positions  constitute  a 
cheap  kind  of  patronage,  which  helps  the  managers 
in  paying  certain  political  debts.  Moreover,  in  mak- 
ing the  committee  so  large  that  it  becomes  unwieldy 
and  helpless,  the  rule  of  the  party  manager  is  rendered 
more  efficient.  The  true  work  of  a  committee  can  of 
course  be  best  done  by  a  small  group  of  men  who  may 
\gather  around  a  table,  and  engage  in  an  informal  dis- 
cussion of  the  business  in  hand.  To  make  of  it  an- 
other assembly,  even  though  it  be  considerably  smaller 
than  the  House  itself,  is  usually  to  defeat  the  possi- 
bility of  efficient  action.  When  such  committees  are 
kept  from  meeting  or  have  their  opinion  practically 
ignored  by  the  independent  action  of  their  chairmen, 

164 


LEGISLATIVE  COMMITTEES 


the  cynicism  of  the  political  manager  reaches  its 
climax.  Occasionally,  the  motive  of  creating  large 
committees  in  certain  lines  of  legislative  business  has 
been  to  strengthen  some  particular  measure  or  group 
of  bills  by  thus  enlisting  from  the  start  the  influence 
and  interest  of  a  considerable  number  among  the 
members.^  1  In  large  committees  it  is  a  very  common 
practice  to  entrust  the  discussion  of  particular  meas-  C^ 
ures  to  sub-committees. ,  As  these  are  selected  and 
controlled  by  the  committee  chairman,  this  method 
is  frequently  used  for  the  preparation  of  measures 
favored  by  the  organization  but  of  such  a  character 
as  not  to  commend  them  to  the  entire  committee. 
Much  of  the  worst  legislation  has  originated  in  this 
manner,  and  the  so-called  ''ripper'*  bills  and 
''strikes"  quite  frequently  owe  their  legislative 
progress  to  the  sponsorship  of  some  sub-committee, 
except  in  cases  where  the  organization  is  so  strong 
that  the  individual  chairmen  can  entirely  dispense 
with  committee  action. 

The  importance  of  individual  committees  depends 
very  largely  upon  the  particular  business  which  occu- 
pies the  chief  attention  of  any  legislative  session. 

*  Among  the  states  which  have  very  large  House  committees 
are  the  following:  Illinois  with  an  average  membership  of 
nineteen;  New  York  with  an  average  of  eleven;  Pennsylvania 
with  twenty-five;  North  Carolina  with  five  committees  over 
thirty;  Alabama  with  seven  of  nineteen  and  over.  Very- 
small  committees  are  found  in  Michigan,  averaging  three-and-a- 
half  in  the  Senate,  and  five-and-a-half  in  the  House ;  Wisconsin, 
averaging  four  and  six.  In  Massachusetts  the  important  com- 
mittees were  in  1890  enlarged  to  a  membership  of  fifteen,  in 
order  to  give  places  to  the  followers  of  the  speaker  of  that  day. 

-     165 


AMERICAN  LEGISLATURES 


But  on  account  of  the  forces  which  we  have  already- 
noted,  this  is  not  always  true,  as  committees  which 
would  naturally  be  important  may  never  be  entrusted 
with  the  business  which  their  name  implies.  Where 
more  normal  conditions  prevail,  the  prominence,  e.  g., 
of  agitation  for  primary  elections,  will  lead  to  the 
appointment  of  a  strong  committee  on  Privileges  and 
Elections,  while  the  discussion  of  railway  taxation 
will  enhance  the  importance  of  the  committee  on 
Finance  and  Taxation.  But  there  are  certain  com- 
mittees which  on  account  of  the  permanent  import- 
ance of  the  business  entrusted  to  them  generally  play 
a  paramount  role  in  the  legislative  session.  In  many 
legislatures  the  committee  on  Rules  has  acquired 
great  importance  through  its  control  of  the  legislative 
business  during  the  latter  stage  of  the  session.^  In 
the  majority  of  the  states,  however,  this  committee 
has  not  yet  followed  in  the  footsteps  of  its  congres- 
sional namesake,  and  confines  itself  to  the  bringing 
in  of  the  standing  rules  and  of  occasional  modifica- 
tions.^ The  committees  dealing  with  state  revenue 
and  expenditure  are  naturally  of  constant  import- 
ance; they  are  designated  variously  as  committee  on 
Ways  and  Means,  Appropriations,  or  Finance;  in 
some  states  there  are  in  each  house  several  committees 
dealing  with  finance.  The  committee  on  Contingent 
Expenses  may  become  important  on  account  of  the 

*  This  is  the  case  especially  in  Illinois  and  New  York,  in  the 
latter  of  which  states  the  presiding  ofBicers  of  both  houses  are 
members  of  the  respective  committees  on  Eules. 

2  No  standing  committee  on  Eules  exists  in  Pennsylvania, 
New  Jersey,  and  Wisconsin. 

166 


LEGISLATIVE  COMMITTEES 


indefinite  nature  of  the  appropriations  which  it  may 
originate,  and  the  consequent  ease  with  which  it  may 
be  made  to  subserve  political  purposes.  The  defeated 
candidate  for  speaker  in  the  House  is  often  made  the 
chairman  of  the  financial  committee.  A  committee 
which  is  quite  uniformly  important  is  that  on  the 
Judiciary.  As  all  bills  involving  a  change  of  the 
Common  Law,  as  well  as  all  amendments  of  the  ex- 
isting general  statutory  law  are  referred  to  this  com- 
mittee, it  has  usually  the  largest  number  of  bills  to 
consider.^  In  some  states  there  are  two  or  more  com- 
mittees to  which  bills  relating  to  changes  in  the  gen- 
eral law  may  be  referred.  Thus  New  York  has  com- 
mittees on  the  Judiciary,  on  the  Code,  and  on  General 
Laws ;  the  latter  being  an  overflow  committee.  Massa- 
chusetts, in  addition  to  separate  committees  on  the 
Judiciary,  has  a  joint  committee  on  Probate  and 
Chancery.  It  is  a  practice  in  some  states  to  constitute 
the  delegation  from  the  most  important  city,  a  com- 
mittee on  the  affairs  of  that  municipality.  This 
method  of  dealing  with  metropolitan  affairs  prevails 
in  California  and  Colorado.^  Kansas,  on  the  other 
hand,  has  five  committees  dealing  with  municipal 
affairs. 

The  control  of  the  order  in  which  various  measures 
shall  be  taken  up  by  the  legislature,  and  the  deter- 
mination of  any  preference  to  be  accorded  to  a  par- 

*  Thus  in  Wisconsin  in  1905,  four  times  as  many  bills  were 
referred  to  this  committee  as  to  any  other. 

2  In  the  California  Assembly,  the  San  Francisco  delegation; 
in  the  Colorado  Senate,  the  senators  from  Arapahoe  County 
(Denver). 

-    167 


AMERICAN  LEGISLATURES 


ticular  bill,  is  in  the  hands  of  the  committee  on  Rules, 
in  those  states  in  which  this  committee  has  been  fully 
developed.  In  a  few  states  the  houses,  a  short  time 
before  the  end  of  the  session,  create  a  **  sifting  com- 
mittee,'' which  takes  charge  of  all  pending  bills,  ex- 
cept appropriation  bills,  and  selects  those  which  are 
to  be  considered  by  the  respective  house.  In  Iowa, 
a  sifting  committee  has  often  been  used  by  the  houses 
of  the  legislature.  When  first  used  in  1870,  it  was 
composed  of  the  chairmen  of  the  standing  committees, 
but  more  recently  the  composition  has  been  different, 
the  speaker  of  the  House,  or  the  presiding  officer  of 
the  Senate,  usually  naming  the  members.  The  com- 
mittee is  appointed  toward  the  end  of  the  session 
when  the  pressure  of  business  has  become  bewildering 
to  the  ordinary  member.  In  1898,  such  a  committee 
was  created  in  the  Senate  three  days  before  adjourn- 
ment. All  bills  were  referred  to  it,  and  it  selected 
sixteen  which  it  reported  to  the  Senate.  In  1894, 
a  House  committee  was  appointed  about  a  week  be- 
fore adjournment  which  selected  forty-seven  mea- 
sures, out  of  all  which  had  been  submitted  to  it.^ 
More  generally  this  function  of  arrangement  and 
selection  is  performed  by  a  so-called  **  steering  com- 
mittee,'* composed  of  representative  members  of  the 
dominant  party.  This  committee  may  be  elected  by 
the  party  caucus  or  it  may  be  composed  informally 
of  the  actual  leaders  in  the  legislature,— the  chairmen 
of  the  most  important  committees  and  other  men 
actually  enjoying  to  the  largest  extent  the  confidence 

*  The  Nebraska  Senate  also  has  a  sifting  committee  of  seven 
members  elected  by  the  Senate. 

168 


LEGISLATIVE  COMMITTEES 


of  the  members  of  the  dominant  party.  The  action 
of  such  informal  committees  is  often  the  determining 
factor  in  legislation,  because  when  the  closing  weeks 
of  the  session  have  arrived,  comparatively  little  im- 
portant business  has  usually  been  accomplished.  The 
sifting  and  arrangement  of  matters  to  be  brought 
before  the  legislature,  when  conscientiously  per- 
formed, is  a  matter  of  no  small  difficulty,  as  it  pre- 
supposes a  thorough  command  of  the  whole  field  of 
legislative  action.  Where  the  organization  is  strong, 
this  method  of  course  resolves  itself  generally  into 
the  advancement  of  a  group  of  measures  determined 
by  the  party  leaders,  and  the  utter  ignoring  of  every- 
thing else,  unless  some  measure  should  be  suddenly 
brought  into  prominence  through  powerful  news- 
paper agitation  or  the  pressure  of  strong  interests. 

When  legislative  business  is  entrusted  to  a  com- 
mittee, it  is  not  customary  to  bind  the  latter  by  direct 
orders  or  instructions  designed  to  control  its  action. 
But  in  general  the  matter  is  left  to  be  dealt  with  by 
the  committee  at  its  discretion. 

A  larger  percentage  of  bills  is  reported  on  in 
state  legislatures  than  in  Congress.  The  rules  of  a  few 
legislatures^  require  that  every  measure  committed 
must  be  reported  back  within  a  certain  time  before 
the  end  of  the  session.  It  is  in  the  states  in  which 
the  political  organization  is  strong  that  the  percentage 
of  bills  smothered  in  committee  is  largest.  Thus 
during  a  period  of  years  in  Illinois,  on  the  average 
about  thirty  per  cent,  of  the  bills  referred  did  not 

*  Massachusetts  (joint  rules),  Ehode  Island  (Senate  rules), 
Maine,  Vermont,  and  New  Hampshire  (House  rules). 

-     169 


AMERICAN  LEGISLATURES 


issue  again  from  the  committee  chamber.  While  the 
legislature  does  not  continuously  supervise  the  com- 
mittee action,  it  is  nevertheless  a  frequent  practice 
for  bills  or  reports  which  prove  unsatisfactory  to  be 
recommitted  with  special  instructions.  When  a  com- 
mittee reports  unfavorably  on  a  measure,  there  is 
generally  little  hope  of  its  passage ;  and  it  frequently 
happens  that  every  adverse  report  made  throughout 
the  session  is  followed.  The  burden  of  proof  arrayed 
against  a  measure  by  such  action  of  the  committee  is 
so  heavy  that  it  can  be  overcome  only  if  the  discus- 
sion on  the  floor  brings  out  new  facts  of  first-rate 
importance;  or  if  a  powerful  popular  agitation  is  set 
on  foot.  It  is  the  usual  practice  to  allow  a  committee 
to  make  but  one  report,— that  upon  which  the  major- 
ity of  the  committee  agree.  In  certain  states,^  how- 
ever, the  right  to  express  their  views  in  a  report  and 
to  suggest  alternative  measures  is  guaranteed  to  the 
minority  of  a  committee  by  the  rules.  The  practice 
in  Connecticut  is  to  consider  the  majority  report  first ; 
if  it  is  accepted  the  minority  report  is  held  to  be 
rejected  without  further  action.  Should,  however, 
the  majority  report  fail  of  acceptance,  that  of  the 
minority  is  at  once  taken  up  and  considered. 

In  legislatures  in  which  committee  action  has  not 
degenerated  into  a  mere  formality,  the  work  of  the 
leading  committees  is  very  arduous,  and  requires  the 
constant  attention  of  their  members  after  legislative 
business  has  gotten  well  under  way.  New  members 
need  to  learn  a  great  many  facts  and  principles,  for 
the  knowledge  of  legal  arrangements  and  of  actual 

*  E.  g.  Connecticut,  Wisconsin. 

170 


LEGISLATIVE  COMMITTEES 


conditions  that  is  required  for  effective  committee 
work  is  very  extensive  indeed.  It  is  a  most  unfor- 
tunate fact  that  industry  and  conscientious  watch- 
fulness in  committee  work  can  in  the  nature  of  things 
receive  so  little  reward.  A  committee  member  may 
by  many  days  of  hard  work  succeed  in  exposing  some 
attempted  raid  on  the  treasury  or  grab  of  public 
rights.  But  his  chief  reward  will  be  in  his  own  con- 
science, because  few  people  will  know  of,  or  care  for, 
his  achievement.  On  the  other  hand,  his  action  will 
gain  him  the  deep  hostility  and  bitter  opposition  of 
the  powerful  interests  crossed  by  him ;  their  purpose 
thereafter  will  be  totally  to  destroy  his  influence,  so 
that  he  may  find  himself  unable  to  accomplish  the 
things  which  his  constituents  are  expecting  of  him. 

The  influence  which  the  chairman  of  a  committee 
may  exercise  over  its  deliberations  and  decisions  is 
very  great.  His  experience  and  knowledge  of  the 
law  and  precedent  give  him  a  natural  ascendancy 
in  his  circle.  Through  intimate  association  with  other 
committee  chairmen  and  with  the  speaker,  he  is  en- 
abled to  view  the  legislative  business  in  its  more 
general  relations.  If  he  is  a  tactful  man  he  will  often 
be  able  to  disarm  opposition  to  an  important  measure 
•by  allowing  full  freedom  of  investigation  and  con- 
sideration, and  refraining  from  the  use  of  the  parlia- 
mentary force  at  his  disposal.* 

The  joint  committee  of  both  houses  of  the  legis- 

*  The  chairman  of  the  Committee  on  Eailroads  in  the  Wis- 
consin Senate  in  1905  thus  succeeded  in  gaining  practically 
unanimous  support  for  the  railway  rate  commission  bill,  which 
was  bitterly  opposed  in  its  initial  stages. 

•  171 


AMERICAN  LEGISLATURES 


lature  as  a  method  of  facilitating  legislative  business 
is  used  extensively  in  New  England,  but  plays  a 
minor  part  in  other  parts  of  the  Union.  Through- 
out the  Middle,  Southern,  and  Western  states,^  the 
use  of  the  joint  committee  is  quite  generally  confined 
to  formal  occasions,  such  as  counting  the  vote  for 
governor,  notification  of  senators-elect,  visiting  state 
institutions,  etc.  Thus  the  use  of  the  joint  committee 
in  the  greater  part  of  the  Union  is  for  the  most  part 
special,  only  rare  instances  of  joint  standing  com- 
mittees being  found.  But  in  some  of  the  Northeastern 
states,  where  quite  distinct  conceptions  of  the  legis- 
lative function  prevail,  the  larger  proportion  of  the 
business  transacted  in  the  subdivisions  of  the  legisla- 
ture takes  place  in  joint  committee  as  may  be  readily 
seen  from  the  following  table; 


Number  of            Number  of  Number  of 

State                                          Joint                      Senate  House 

Committees            Committees  Committees 

Connecticut   38    ^tfeiec?""^    ^  4 

Rhode  Island 7                  13  13 

Massachusetts    34    %lfS^^f    5  7 

Vermont   12                  20  23 

New  Hampshire   3                  23  35 

Maine    36    ^VSt"^    3  6 


^Except  in  New  Jersey,  where  there  are  thirteen  joint  com- 
mittees. The  system  here  used  is  to  intrust  the  affairs  of  the 
various  state  institutions  to  such  joint  committees.  Delaware 
has  a  joint  committee  of  Finance.  Wisconsin  has  joint  com- 
mittees on  Claims,  on  Charitable  and  Penal  Institutions,  on 
Printing,  and  on  Fish  and  Game. 

172 


LEGISLATIVE  COMMITTEES 


Thus  in  the  states  of  Connecticut,  Massachusetts 
and  Maine,  the  joint  committee  is  the  rule  rather  than 
the  exception.  It  is  by  no  means  surprising  that  this 
institution  should  find  its  widest  development  in  New 
England.  The  compactness  of  interests,  the  public 
attention  bestowed  on  legislative  matters,  the  legacy 
of  political  experience,  the  ultra-practical  type  of  the 
Yankee  mind,  as  well  as  the  comparative  smallness  of 
committees,  and  the  traditional  conservatism  and  re- 
tention of  accustomed  forms,  serve  to  render  this  field 
a  favorable  one  for  the  joint  action  of  legislative  com- 
mittees. In  the  large  industrial  states,  whose  political 
organizations  are  centralized  and  dominated  by  ma- 
chines, the  joint  committee  receives  but  scant  oppor- 
tunity for  employment.  The  power  of  the  organiza- 
tion has  been  such  as  to  minimize  the  importance  of 
the  ordinary  committee  system,  and  legislative  action 
becomes  largely  mechanical,  responding  to  the  pres- 
sure of  the  hand  that  grips  the  organization  lever.  It 
is  far  more  difficult  to  manipulate  a  joint  committee, 
in  which  the  public  is  interested  and  whose  hearings 
are  attended  by  all  persons  concerned,  than  to  use  the 
system  of  separate  committees  in  such  a  manner  as 
to  defeat  the  public  interest,  even  though  maintaining 
the  appearance  of  careful  consideration  and  normal 
procedure.  Among  the  great  practical  advantages  of 
the  joint  committee  system  are  the  saving  of  time 
through  avoiding  duplication,  the  lessening  of  the 
tendency  toward  the  mutual  shifting  of  responsibility, 
a  strong  educative  influence  on  the  newer  members, 
the  increase  of  efficiency  due  to  intimate  contact  of 
men  of  both  houses  and  of  varied  experience,  the 
'    173 


AMERICAN  LEGISLATURES 


closer  scrutiny  and  more  intensive  investigation  of 
legislative  problems.  Not  the  least  advantage  comes 
from  the  fact  that  the  influence  of  the  committee 
members  from  the  Upper  House  tends  to  act  as  a 
counter  check  upon  the  over-powerful  domination  of 
the  speaker  over  Assembly  committees. 

The  potential  influence  of  committee  hearings  to 
bring  to  bear  upon  legislative  action  the  opinions  and 
desires  of  the  public  in  a  truly  democratic  manner, 
has  scarcely  been  realized  outside  of  the  Common- 
wealth of  Massachusetts.  In  that  state,  committee 
hearings  are  a  very  important  part  of  legislative 
action.  Notice  of  all  hearings  is  given  in  the  public 
press,  and  the  committee  meetings  are  well  attended, 
not  only  by  people  who  have  an  ax  to  grind  but  by 
citizens  of  the  state  who  interest  themselves  in  legisla- 
tive reforms.  All  testimony  brought  before  the  com- 
mittees is  carefully  weighed;  in  fact,  the  legislature 
and  its  committees  assume  rather  a  judicial  attitude. 
Petitions  are  brought  before  them,  testimony  is  given, 
arguments  are  made,  and  they  in  general  decide  the 
matter  impartially  upon  the  basis  of  all  these  con- 
siderations. The  fact  that  the  legislature  meets  in 
the  metropolis  of  the  state,  where  those  interested  in 
legislation  can  watch  it  without  special  trouble  or  ex- 
pense, is  a  favorable  factor ;  but  the  General  Court  of 
Massachusetts  is  in  all  respects  nearest  the  people, 
and  most  responsive  o£  any  American  legislature  to 
intelligent  public  opinion. 

The  practice  has  recently  arisen  of  allowing  com- 
mittees of  the  legislature  to  sit  in  the  interval  between 
legislative  sessions.     The  purpose  usually  has  been 

174 


LEGISLATIVE  COMMITTEES 


to  acquire  through  investigation  a  sufficient  basis  of 
fact  for  prospective  legislative  action.  The  holdover 
senators  form  the  personal  link  between  the  legisla- 
tive session  appointing  the  committee  and  that  to 
which  it  is  to  report.  Considering  the  frequency  of 
extra  sessions  in  most  states  which  have  a  biennial 
session,  we  note  a  certain  tendency  toward  continuity 
of  legislative  action,  of  which  the  inter-session  com- 
mittees are  another  indication.  Prominent  examples 
of  such  committees  are  the  Stevens  committee 
(1904),  for  the  investigation  of  gas  prices  in 
New  York,  which  did  exceedingly  careful  and 
important  work;  the  Committee  on  Traction  In- 
terests appointed  in  Massachusetts  in  1905;  and 
the  famous  Insurance  Investigation  Committee  ap- 
pointed in  New  York  in  the  same  year.^  This  activity 
of  a  legislative  committee  of  inquiry  in  subjecting  a 
certain  industry  or  condition  to  a  searching  scrutiny, 
uncovering  abuses,  putting  aside  shams,  and  arriving 
at  a  sound  basis  of  fact,  is  certainly  the  only  safe 

*Aii  important  investigation  was  undertaken  by  the  Drake 
committee  of  the  Ohio  Senate  in  1906.  In  inquiring  into  the 
affairs  of  Cincinnati,  the  committee  caused  the  return  to  the 
public  treasury  of  over  $200,000,  which  had  been  given  as 
gratuities  to  treasurers,  by  banks  favored  in  the  deposit  of 
Hamilton  County  funds.  The  work  of  the  committee  was 
blocked,  and  its  powers  of  action  emasculated  by  a  remark- 
able decision  rendered  by  a  judge  of  the  court  of  common 
pleas,  who  took  the  ground  that  the  investigating  committee 
was  an  illegal  body,  as  the  constitution  of  Ohio  gave  the  legis- 
lature no  authority  to  appoint  a  commission  with  power  to 
take  testimony  as  to  alleged  corruption  in  Hamilton  County 
and  to  compel  the  attendance  of  witnesses. 

"    175 


AMERICAN  LEGISLATURES 


preparation  for  legislative  action  upon  complicated 
industrial  and  financial  matters.  As  the  powers  of 
such  a  committee  to  demand  the  production  of  evi- 
dence generally  transcend  those  possessed  by  a  grand 
jury,  this  method  bids  fair  to  become  very  useful  for 
the  purpose  of  dealing  with  a  wide-spread  corruption, 
backed  by  powerful  interests. 

The  federal  courts,  it  is  true,  have  shown  a  tendency 
to  limit  the  power  of  investigation.  They  hold  that, 
while  the  power  of  the  English  Parliament  to  punish 
for  contempt  cannot  be  limited  by  any  judicial  pro- 
cedure such  as  habeas  corpus,  the  powers  of  Con- 
gress, being  delegated,  are  not  of  this  unlimited  na- 
ture, and  that  Congress  has  not  succeeded  to  the 
powers  of  Parliament  in  this  matter.^  Congress  has 
no  authority  to  inquire  into  the  private  affairs  of  a 
citizen,  except  where  the  examination  is  necessary 
in  such  a  quasi-judicial  proceeding  as  a  contested  elec- 
tion, the  impeachment  of  officers  of  the  government, 
or  the  trial  of  one  of  its  own  members  for  disorderly 
conduct.  The  Supreme  Court  has,  however,  more  re- 
cently decided,  in  the  case  concerning  the  charges 
against  senators  in  connection  with  the  tariff  on  sugar, 
that  "Congress  possesses  the  constitutional  power  to 
enact  a  statute  to  enforce  the  attendance  of  witnesses, 
and  to  compel  them  to  make  disclosures  of  evidence 
to  enable  the  respective  bodies  to  discharge  their  legis- 

^Kilbourn  v.  Thompson,  103  U.  S.,  168.  Councilman  v. 
Hitchcock,  142  U.  S.,  547.  Interstate  Commerce  Commission 
V.  Brimson,  154  U.  S.,  447.  A  Congressional  investigation  into 
the  affairs  of  the  Central  Pacific  Kailroad  Company  was  smoth- 
ered in  the  Pacific  Railroad  Company  case.    142  Fed.  R.,  241. 

176 


LEGISLATIVE  COMMITTEES 


lative  functions. '^^  The  courts  of  the  states  also  do  not 
consider  the  power  of  legislatures  to  imprison  for  con- 
tempt unlimited  and  entirely  exempt  from  judicial 
interference.^  But  they  hold  either  that  legislatures 
are  entitled  by  the  common  parliamentary  law  to  com- 
pel the  attendance  of  persons  within  the  state  as  wit- 
nesses in  regard  to  any  subject  in  which  they  have 
power  to  act,^  or  they  are  liberal  in  their  interpreta- 
tion of  powers  granted  to  the  legislature  by  the  state 
constitutions.^  In  order  that  a  committee  may  exer- 
cise this  power,  an  investigation  must  however  be  con- 
nected with  intended  legislation,  and  not  merely  be 
instituted  for  the  purpose  of  using  a  certain  expose 
for  political  advantage.  But  where  a  basis  for  legis- 
lation is  sought  in  good  faith,  either  house  may  com- 
pel the  attendance  of  witnesses  for  legislative  pur- 
poses.^ In  some  states,  e.g.,  Maryland,  the  power  to 
summon  witnesses  for  legislative  purposes  is  expressly 
granted  by  the  constitution.  The  Supreme  Court  of 
Wisconsin  has  pronounced  in  a  dictum  that  the  rule 
of  law  excusing  a  person  from  giving  evidence  incrim- 
inating himself,  has  no  application  in  legislative 
investigations.® 

On  account  of  the  comparatively  large  membership 
of  the  Lower  House  in  the  state  legislatures,  as  well 

1  In  re  Chapman,  166  U.  S.,  661. 

2  Bumham  v.  Morrissey,  14  Gray,  226.    (Mass.,  1859.) 

3  Ex  parte  McCarthy,  29  Cal.,  395. 

4Wilckens  v.  Willett,  4  Abbott's  Decisions,  596.      (N.  Y., 
1864.) 

5  People  ex  rel.  Keeler  v.  McDonald,  99  N.  Y.,  463. 

6  In  re  Falvey,  7  Wis.,  630. 

-   177 


AMERICAN  LEGISLATURES 


as  the  inexperience  of  the  majority  of  its  members, 
it  is  natural  that  a  large  amount  of  power  should  have 
been  concentrated  in  the  hands  of  the  speaker. 
Through  his  power  of  making  committee  appoint- 
ments, of  distributing  the  legislative  business,  of  guid- 
ing the  discussion  on  the  floor,  and,  with  the  aid  of 
the  Committee  on  Rules  or  through  an  informal  steer- 
ing committee,  of  controlling  or  at  least  influencing 
the  order  of  business,  and  determining  the  opportu- 
nities to  be  accorded  the  backers  of  any  particular 
measure,  the  speaker  may  build  up  a  powerful  influ- 
ence, if  he  unites  technical  knowledge  with  political 
tact.  The  chances  for  the  development  of  a  strongly 
centralized  parliamentary  authority  in  the  state  legis- 
latures are  of  course  less  favorable  than  they  have 
been  in  Congress  during  the  last  two  decades.  Yet  in 
some  of  the  larger  states,  like  New  York,  Pennsyl- 
vania, and  Illinois,  gavel-rule  has  at  times  been  carried 
out  with  more  lack  of  consideration  for  the  political 
opposition,  and  especially  for  the  minority  in  the 
ruling  party,  than  has  ever  been  exhibited  in  Con- 
gress. While  the  Congressional  speaker  has  never 
been  accused  of  systematically  working  in  alliance 
with  corrupt  interests,  such  connection  has  at  times 
been  established  in  some  of  the  states.  In  Pennsylvania 
it  was  openly  acknowledged,  with  the  cynical  frank- 
ness of  the  former  political  masters  of  that  common- 
wealth. The  New  York  Assembly  has  perhaps  ap- 
proached most  closely  to  the  model  of  Congress,  and 
under  strong  and  able  speakers  like  Nixon  there  has 
been  a  concentration  of  parliamentary  activities, 
and  a  guidance  of  parliamentary  procedure  through 

178 


LEGISLATIVE  COMMITTEES 


the  Committee  on  Rules,  closely  approaching  the  situ- 
ation in  Congress.  But  in  the  ordinary  legislatures, 
parliamentary  centralization  is  not  carried  to  such  an 
extent  because  it  is  not  necessary.  The  membership;, 
is  smaller,  the  amount  of  business  less  distracting; 
there  can  be  more  free  discussion,  and  more  individuals 
independence  of  the  members.  In  these  legislatures, 
the  speaker  owes  what  influence  he  may  have  to  his 
personal  experience  and  ability,  rather  than  to  the 
structural  factors  involved.  It  occasionally  happens 
that  even  in  those  states  in  which  the  organization  is 
most  effectual,  a  successful  revolt  may  take  place. 
Thus  in  the  Illinois  Assembly  of  1903,  the  power  of 
the  speaker  was  overthrown  by  the  minority  Repub- 
licans and  the  Democrats,  when  the  famous  traction 
bill  of  that  year  was  up  for  consideration.  ^.--^^ 

The  subject  of  conference  committees  in  state  legis- 
latures does  not  present  many  difficult  problems,  for 
the  cardinal  weakness  of  the  legislatures  of  our  com- 
monwealths lies  rather  in  their  careless  habit  of  un- 
discriminating  assent  to  the  larger  part  of  the  mea- 
sures presented  to  them,  than  in  any  tendency  to  obsti- 
nate disagreement  between  rival  chambers.  The  habit 
of  unanimous  consent  has  fastened  itself  so  strongly 
upon  many  of  our  state  legislatures,  that  the  arbitral 
function  of  the  conference  chamber  is  resorted  to  only 
upon  rare  occasions.  The  general  weakness  of  the 
party  system  in  our  local  lawmaking  bodies,  combined 
with  the  usual  tacit  understanding  between  the  oppos- 
ing machines,  as  well  as  the  infrequence  of  opposing 
control  in  the  two  houses  in  the  present  day  of  sec- 
tional majorities,  assure  the  flood  of  legislation  a 
.     179 


AMERICAN  LEGISLATURES 


passage  free  from  the  friction  which  necessitates  in 
Congress  the  compromising  agency  of  the  Committee 
of  Conference.  When  occasions  arise  for  the  calling 
of  a  conference  committee,  the  practice  most  widely 
in  use  requires  that  upon  the  request  of  one  house 
accompanied  by  its  appointment  of  a  committee  for 
the  purpose,  the  other  chamber  must  send  a  similar 
committee  of  an  equal  number  to  state  its  position 
and  seek  a  via  media  of  common  agreement.^  The  con- 
ference committee,  being  by  its  very  reason  and  nature 
a  special  institution,  all  minor  questions  of  the  time 
of  meeting,  committee  procedure,  etc.,  are  left  almost 
altogether  to  the  option  of  the  committee  itself.  It 
is  a  quite  general  and  intrinsically  necessary  practice 
to  provide  that  a  conference  report  cannot  be  amended 
or  altered.  Usually,  the  halves  of  the  committee  re- 
port to  their  respective  houses,  but  Massachusetts 
provides  for  a  joint  report  to  the  house  requesting  the 
conference.  In  Ohio  the  organization  phalanx  so 
long  in  control  of  state  politics  established  joint  rules 
which  made  legislative  disagreement  on  matters  of 
detail  almost  impossible.  It  was  provided  that  a  com- 
mittee of  conference  should  be  appointed  whenever 
any  disagreement  of  opinion  should  exist  between  the 
two  houses ;  that  in  case  this  original  committee  should 
disagree,  another  should  succeed  it;  that  if  either 
house  disagreed  to  a  conference  report,  it  should  re- 

*  The  usual  number  is  three  representatives  from  each  house ; 
sometimes  no  number  is  provided  in  the  rules  (Massachusetts, 
Maryland,  Califojuia} ;  some  states  require  that  the  conferring 
members  represent  the  majority  of  their  house  (Massachu- 
setts), others  by  lack  of  provision  allow  minority  representa- 
tion (Pennsylvania). 

180 


LEGISLATIVE  COMMITTEES 


quest  a  new  meeting  of  the  committee,  to  which  re- 
quest the  other  house  should  accede.  While  such 
ample  provisions  were  made,  the  legislative  practice 
was  so  responsive  to  organization  demands  that  the 
compromise  conference  was  after  all  of  rare  occur- 
rence. The  legislature  of  Ohio,  like  many  of  its  sister 
bodies,  found  working  agreements  between  parties 
and  houses  of  so  easy  making,  that  no  rough  edges 
were  left  to  be  chipped  off  by  the  conference  chisel. 
An  extreme  example  of  the  workings  of  the  conference 
committee  in  times  of  legislative  disagreement  was 
afforded  in  Pennsylvania  in  1883.  The  state  govern- 
ment was  divided  between  the  rival  parties ;  the  gov- 
ernorship and  House  majority  being  Democratic, 
while  the  Senate  was  under  Republican  control.  As 
the  state  thus  stood  in  the  doubtful  column,  with  a 
national  political  crisis  in  view,  the  question  of  party 
control  through  reapportionment  became  of  vital  im- 
portance. The  two  houses  being  in  a  hopeless  dead- 
lock during  the  regular  session,  an  extra  session  fol- 
lowed on  its  heels.  At  this  point  the  conference  com- 
mittee became  the  battlefield  of  the  opposing  forces. 
As  a  result  of  many  moves  and  counter-moves,  the  fol- 
lowing rulings  took  their  places  among  the  decisions 
and  precedents  of  the  Pennsylvania  legislature, 

1.  That  the  conference  committee  should  have 
power  over  the  whole  bill  committed  to  its  care. 

2.  That  the  House  by  special  resolution  might  au- 
thorize such  a  committee  to  consider  a  bill  not  pre- 
sented at  that  session. 

3.  That  final  disagreement  upon  a  conference  com- 
mittee report  operated  as  a  discharge  of  the  commit- 
tee without  further  action  of  the  House. 

181 


AMERICAN  LEGISLATURES 


4.  That  the  committee  once  discharged  was  not  sub- 
ject to  instructions. 

It  must  be  remarked  that  these  ultra-liberal  rul- 
ings were  made  under  extraordinary  circumstances. 
Their  value  as  examples  is  conditioned  by  the  fact 
that  they  probably  mark  the  widest  limit  of  confer- 
ence power.  They  cannot  by  any  means  serve  as  a 
type  of  the  usage  in  the  normally  governed  legisla- 
ture. The  older  practice  of  compromise  through  con- 
ference still  plays  an  important  part  in  our  Congres- 
sional legislation.  The  state  legislatures  have  failed 
to  follow  in  the  path  of  the  national  body,^  largely 
because  of  the  shifting  of  main  political  interest  from 
the  local  centers  to  the  national  one.  Now  that  party 
warfare  carries  on  its  chief  manoeuvres  in  the  Con- 
gressional forum,  the  inner  state  struggles  no  longer 
take  the  form  of  inter-house  conflicts.  The  confer- 
ence compromise  however  is  still  a  living  force.  The 
spirit  exists  though  the  form  decays.  New  England 
finds  the  joint  committee  a  more  efficient  instrument 
than  the  committee  of  conference.  The  tendency  less 
strong  elsewhere  works  out  in  the  inner  organization 
of  the  party  rather  than  in  the  outer  organization  of 
the  legislature.  But  this  leaves  much  to  be  desired. 
In  the  growing  movement  toward  more  careful  and 
less  prolific  legislation,  the  conference,  like  the  joint 
committee,  may  come  to  be  an  important  factor  in  in- 
creasing the  efficiency  of  our  legislatures. 

*  Although  occasionally,  as  in  the  Illinois  extra  session  of 
1906,  a  real  conflict  occurs  and  very  important  matters  are 
decided  in  conference. 


182 


CHAPTEE  VI 

PROCEDURE  EST  STATE  LEGISLATURES 

Legislative  procedure  among  our  many  common- 
wealths, while  subject  to  infinite  modification  and 
diversity  of  detail,  most  generally  follows  along  the 
line  of  a  certain  recognized  practice  common  in  sub- 
stance to  almost  all  our  state  legislatures.  The  first 
step  in  the  process  of  actual  lawmaking  occurs  when 
the  bill  is  presented  to  the  house,  endorsed  with  the 
title  and  the  name  of  its  sponsor.  In  usual  procedure, 
the  introduction  of  bills  takes  place  at  the  time  ap- 
pointed in  the  order  of  business  for  the  day.  A  mem- 
ber rising  in  his  place  and  obtaining  recognition,  begs 
leave  to  introduce  a  bill.  This  being  tacitly  granted, 
the  bill  is  sent  by  a  page  to  the  clerk  who  reads  the  bill 
by  title,  upon  which  the  officer  presiding  announces 
the  first  reading  of  the  bill.  In  most  legislative  bodies 
a  second  reading  and  announcement  immediately  fol- 
low. However  the  constitution  and  usage  in  some 
states  call  for  separate  readings  on  different  days. 
Upon  the  second  reading  of  the  bill,  it  is  assigned  to 
such  committee  as  may  seem  appropriate,  in  the 
House  of  Representatives  or  Assembly  by  the  speaker, 
in  the  Upper  House  by  the  lieutenant-governor  or 
.    183 


AMERICAN  LEGISLATURES 


president  of  the  Senate.  At  times  reference  to  some 
particular  committee  is  made  at  the  request  or  sug- 
gestion of  the  member  introducing  the  bill.  After 
due  consideration,  if  a  favorable  view  is  taken,  the 
committee  reports  the  bill  back  to  the  house,  together 
with  its  recommendations  thereon.  If  unfavorable 
the  committee  rarely  reports.^  Sometimes  the  com- 
mittee reports  a  recommendation  simply  for  passage, 
indefinite  postponement,  reference  to  some  other  com- 
mittee, etc. ;  or,  in  other  instances,  it  may  report  vari- 
ous amendments  or  make  a  detailed  statement.  In 
case  of  the  report  failing  to  satisfy  the  house,  a  motion 
may  be  passed  to  recommit,  with  or  without  instruc- 
tions. A  bill  may  be  recommitted  at  any  time  pre- 
vious to  its  passage.  The  local  legislatures  have  not 
to  any  great  extent  followed  their  national  prototype 
in  a  frequent  use  of  the  Committee  of  the  Whole. 
"While  it  may  be  convened  upon  the  request  of  a  cer- 
tain portion  of  the  members  present  (usually  one- 
sixth),  its  use  is  of  comparatively  rare  occurrence. 

The  bill,  once  reported,  is  usually  placed  upon  the 
calendar  for  the  succeeding  legislative  day  under  the 
title  of  ''Bills  ready  for  engrossment  and  third  read- 
ing. * '  At  this  stage  the  bill  is  subject  to  general  dis- 
cussion and  amendment  on  the  floor.  If  the  bill  is 
by  the  house  ordered  to  be  engrossed  and  read  a  third 
time,  the  clerk  passes  it  over  to  the  proper  officials 
for  engrossment.  This  function  is  ordinarily  per- 
formed by  the  engrossing  and  comparing  clerks,  whose 

*A11  matters  referred  to  committees  must  be  reported  on  in 
Massachusetts,  in  the  Senate  of  Ehode  Island,  and  in  the 
Lower  House  in  Maine,  Vermont,  and  New  Hampshire. 

184 


PROCEDURE  IN  STATE  LEGISLATURES 

duty  it  is  carefully  to  prepare  the  engrossment  and 
make  certain  that  it  is  correct  in  phraseology  and 
exactly  similar  to  the  original  bill  as  amended.  Their 
work  is  usually  checked  and  supervised  by  a  Com- 
mittee on  Engrossed  Bills.  The  usage  in  many  states 
permits  that  whenever  a  bill,  fairly  written  or  printed 
without  interlineation  or  erasure,  is  without  amend- 
ment ordered  to  be  engrossed  for  a  third  reading,  it 
may  be  reported  to  the  house  as  the  engrossed  bill. 
The  neglect  of  enforcing  the  provisions  for  careful 
examination  and  supervision  of  engrossment  and  en- 
rolment, at  times  permits  the  creeping  in  of  error  and 
misconstruction,  through  careless  or  unscrupulous 
action  of  subordinates.  After  engrossment  the  bill 
goes  to  its  third  reading,  on  which  occasion  it  receives 
the  final  test  in  the  house  prior  to  passage.  The 
progress  of  the  bill  may  be  hastened  by  its  being 
made  a  special  order  for  a  certain  day.  This  object 
is  also  facilitated  by  the  widespread  use  of  the  sus- 
pension of  the  rules,  particularly  in  the  final  days  of 
the  session.  Once  having  successfully  accomplished 
its  passage  through  one  house,  the  bill  is  taken  to  the 
other  chamber  together  with  a  special  message  an- 
nouncing its  passage.  Here,  having  been  read  twice 
by  title,  it  is  referred  to  the  appropriate  committee, 
and  treated  in  a  fashion  similar  to  that  of  bills  origin- 
ating in  this  house.  Upon  decisive  action  being  taken, 
a  message  is  sent  to  the  originating  house  announcing 
the  fact  of  concurrence  or  amendment. 

Should  the  bill  receive  favorable  action  in  both 
houses,  the  concurring  body  returns  the  bill  to  that  in 
which  it  originated,  where  it  is  given  into  the  charge 
"    185 


AMERICAN  LEGISLATURES 


of  the  enrolling  clerk,  who  makes  a  proper  copy  of 
the  same.  It  is  the  function  of  the  Committee  on  En- 
rolled Bills  to  supervise  the  making  of  the  new  copy 
and  the  comparing  of  it  with  the  engrossed  bill. 
When  the  copy  has  been  made  in  a  satisfactory  man- 
ner, the  members  of  this  committee  report  the  bill 
back  to  their  house.  The  engrossed  bill  remains  filed 
with  the  clerk  of  the  originating  house ;  while  the  en- 
rolled bill  receives  his  endorsement,  as  well  as  the 
signatures  of  the  presiding  officer  of  each  body.  Then 
the  clerk  sends  the  enrolled  bill  to  the  governor  for 
his  approval  or  veto.  In  some  states,  the  bill  may  by 
joint  resolution  of  the  two  houses  be  recalled  from 
the  governor  for  reconsideration.  The  approval  of 
the  Executive  is  commonly  expressed  by  his  signature, 
and  is  followed  by  a  message  to  the  originating  house 
announcing  the  signing  of  the  bill  and  its  deposit 
with  the  secretary  of  state.  Dissent  ordinarily  takes 
the  form  of  the  governor's  returning  the  bill  to  the 
originating  house  with  a  message  giving  his  reasons 
for  disapproval.  The  veto  may  in  a  number  of  states 
also  be  exercised  at  the  close  of  the  session  by  allowing 
the  undesirable  bills  passed  during  the  final  days  to 
expire  by  the  withholding  of  the  Executive  signature. 
The  methods  of  financial  legislation  in  the  state 
legislatures  are  full  of  confusion  and  are  indeed  in 
urgent  need  of  systematization.  The  unity  of  a 
budget  in  which  the  resources  and  necessary  expen- 
ditures of  a  state  are  summarized  and  balanced  is 
entirely  lacking;  and  in  general  the  members  do  not 
at  any  stage  of  the  session  enjoy  a  fair  opportunity 
to  understand  the  exact  nature  and  mutual  relations 

186 


PROCEDURE  IN  STATE  LEGISLATURES 

of  the  various  financial  proposals  of  legislation.  While 
a  general  appropriation  bill,  covering  the  regular 
needs  of  the  departments  of  government,  is  usually 
prepared  by  the  financial  committee,  any  member  has 
of  course  the  right  to  introduce  bills  directly  or  in- 
cidentally carrying  an  appropriation.  Such  meas- 
ures are  generally  referred,  not  to  the  committee  deal- 
ing with  appropriations,  but  to  that  which  has  juris- 
diction over  the  special  subject  matter  of  the  bill.^ 
The  difficulty  of  forming  a  clear  conception  of  the 
scope  of  pending  financial  legislation  is  augmented  by 
the  fact  that  in  many  states  there  are  large  per- 
manent appropriations  which  do  not  need  special  re- 
enactment  at  every  session,  and  whose  relation  to 
temporary  and  annual  appropriations  it  is  not  easy 
for  the  ordinary  member  to  gage.  While  most  ap- 
propriations are  made  in  fixed  amounts,  indefinite 
appropriations  are  found  in  states  where  no  strict 
constitutional  provisions  on  this  matter  exist;  and 
even  where  the  latter  is  the  case,  the  appropriations 
are  often  so  general  and  so  liberal  that,  though  for  a 
fixed  amount,  they  are  very  indefinite  as  to  the  man- 
ner in  which  the  money  is  to  be  expended.  The  last 
days  of  the  session  are  usually  so  crowded  with  ap- 
propriation bills,  that  it  is  not  possible  even  for  the 
chairman  of  the  Finance  Committee  and  other  leaders 
to  enjoy  a  complete  survey  of  such  legislation.  The 
bills  that  are  passed  are  then  submitted  to  the  gov- 
ernor, who  is  thus  enabled  to  fix  the  final  character  of 
the  financial   legislation,   although  his   discretion   is 

*In  some  states  all  bills  involving  appropriations  must  be 
referred  to  the  financial  committee.    See  below. 

•187 


AMERICAN  LEGISLATURES 


very  much  hampered  in  the  states  which  do  not  per- 
mit the  veto  of  individual  items  in  an  appropriation 
bill.^  At  no  stage  of  the  session  and  not  even  for  a 
long  time  thereafter  can  it  be  determined  with  ac- 
curacy how  much  money  has  actually  been  appro- 
priated. That  such  a  condition  of  affairs  does  not 
result  in  a  careful  administration  of  state  finances  is 
not  surprising.  Upon  the  legislature  itself  it  has  a 
most  demoralizing  effect,  especially  since  so  many 
members  are  predisposed,  on  the  principle  of  ''do 
unto  others,"  to  vote  for  almost  any  appropriation 
that  may  come  up. 

It  is  a  general  practice  for  some  state  official,  the 
auditor,  or  controller,  or  secretary  of  state,  to  pre- 
pare a  statement  of  the  financial  condition  of  the 
state,  to  which  in  most  cases  is  added  an  estimate  of 
the  appropriations  necessary  for  the  various  depart- 
ments. This  statement  is  printed  and  placed  in  the 
hands  of  the  legislators.  But  as  most  of  the  latter  are 
inexperienced  in  dealing  with  financial  and  statistical 
matters,  and  as  there  is  no  financial  minister  in  the 
legislature,  whose  duty  it  is  by  lucid  explanation  to 
give  life  to  dead  statistics,  these  estimates  do  not  have 
a  very  enlightening  effect  upon  the  average  member. 
In  some  cases  other  means  have  been  provided  for  the 

*In  twenty-nine  states  the  governor  has  been  granted  au- 
thority to  veto  separate  items  in  appropriation  bills:  Alabama, 
Arkansas,  California,  Colorado,  Delaware,  Georgia,  Idaho,  Illi- 
nois, Kansas,  Kentucky,  Louisiana,  Maryland,  Minnesota,  Mis- 
sissippi, Missouri,  Montana,  Nebraska,  New  York,  North 
Dakota,  Ohio,  Pennsylvania,  South  Carolina,  South  Dakota, 
Texas,  Utah,  Virginia,  Washington,  West  Virginia,  Wyoming. 

188 


PROCEDURE  IN  STATE  LEGISLATURLS   *• 

purpose  of  furnishing  estimates.  The  new  constitu- 
tion of  Alabama  provides  that  the  state  officers  shall, 
before  the  opening  of  the  legislature,  prepare  a  gen- 
eral appropriation  bill  covering  the  needs  of  the 
various  departments  and  institutions  of  the  state, 
within  the  limits  of  its  probable  revenue.  This  bill 
gives  the  legislature  something  definite  to  work  on. 
In  Indiana,  the  governor,  immediately  after  the 
November  election,  appoints  a  committee  from  the 
state  legislature,  whose  duty  it  is  to  examine  the 
various  state  institutions  and  to  make  a  report  upon 
their  condition  and  their  financial  needs.  In  most 
states,  the  preparation  of  the  general  appropriation 
bill  is  left  to  the  Committee  on  Appropriations,  which 
is  called  in  some  legislatures  Committee  on  Ways  and 
Means,  or  on  Finance. 

In  a  number  of  states  the  constitution  requires  that 
the  general  appropriation  bill  shall  not  contain  any- 
thing but  appropriations  for  the  ordinary  expenses 
of  the  executive,  legislative,  and  judicial  departments 
of  the  state,  and  for  the  interest  on  the  public  debt ;  * 
in  some  cases  appropriations  for  the  public  schools 
are  included.  It  is  also  generally  provided  that  all 
other  special  appropriations  are  to  be  made  by  sepa- 
rate bills  embracing  but  one  subject  each.  Under  the 
constitution  of  New  York  no  provision  can  be  at- 
tached to  the  annual  appropriation  or  supply  bill  un- 
less it  relates  specifically  to  some  appropriation  there- 
in made ;  this  effectually  prevents  the  attachment  of 

*  Alabama,  Arkansas,  California,  Colorado,  Georgia,  Illinois, 
Missouri,  Montana,  North  Dakota,  Pennsylvania,  South  Dakota, 
West  Virginia,  Wyoming. 

'   189 


AMERICAN  LEGISLATURES 


riders,  dealing  with  entirely  extraneous  matters,  to 
appropriation  bills.  It  is  not  difficult  to  see  the  pur- 
pose of  these  various  provisions.  Experience  has 
shown  that  where  it  is  possible  to  combine  a  large 
number  of  miscellaneous  appropriations  in  one  meas- 
ure, the  practice  known  as  log-rolling  inevitably  be- 
comes prevalent.  But  while  these  provisions  discour- 
age log-rolling,  they  also  make  it  impossible  to  have 
a  budgetary  law  which  will  deal  with  all  the  appro- 
priations of  the  state  and  in  which  an  attempt  can  be 
made  to  harmonize  financial  measures  and  bring  them 
into  proper  relation  to  one  another.  The  Missouri 
constitution  of  1875  established  a  general  order  of 
precedence  for  appropriation  bills.  Priority  is  fixed 
in  the  following  manner:  first,  appropriations  for 
interest  on  the  public  debt ;  second,  the  sinking  fund ; 
third,  public  schools;  fourth,  assessment  and  collec- 
tion of  taxes ;  fifth,  the  civil  list ;  sixth,  eleemosynary 
institutions ;  seventh,  the  pay  of  the  Assembly  and  all 
other  purposes.  Before  the  Assembly  can  make  an 
appropriation  for  any  of  these  purposes,  the  appro- 
priations for  all  the  preceding  ranks  must  have 
actually  been  completed. 

All  the  legislatures  have  one  or  more  standing  com- 
mittees dealing  specifically  with  financial  affairs.  In 
most  states  there  are  separate  committees  dealing  with 
appropriations  and  with  matters  of  taxation  in  each 
house.  In  some  cases,  however,  both  of  these  aspects 
of  financial  legislation  are  intrusted  to  one  committee. 
Among  other  committees  which  are  often  found  is 
that  on  Contingent  Expenses  of  the  Houses— a  fav- 
orite  instrument   of  corrupt   politics — and   that   on 

190 


PROCEDURE  IN  STATE  LEGISLATURES 

Retrenchment,  which  though  expressive  of  a  good 
purpose  is  rarely  of  much  importance  in  the  revision 
of  financial  legislation.  Wisconsin  has  a  joint  com- 
mittee on  Claims,  which,  on  account  of  representing 
both  houses  and  dealing  with  miscellaneous  appro- 
priations, has  acquired  great  influence.  The  chair- 
manship of  financial  committees  is  much  sought  after, 
and  very  often  the  defeated  candidate  for  the  speaker- 
ship in  the  house  is  made  chairman  of  the  Appropria- 
tion Committee.^ 

In  some  states  the  disadvantages  and  dangers  of  the 
lack  of  concentration  have  been  recognized  and  steps 
have  been  taken  to  bring  all  financial  legislation  under 
the  supervision  of  one  committee.  Thus,  in  Illinois, 
the  rules  provide  that  all  bills  carrying  appropria- 
tions, when  reported  by  any  committee,  shall  then  be 
referred  to  the  Committee  on  Appropriations;  and 
the  New  York  legislative  law  requires  that  all  bills 
involving  appropriations  shall  be  referred  to  the 
financial  committee  in  both  houses.  The  Wisconsin 
Committee  on  Claims  has  recently  begun  to  use  its 
influence  for  the  harmonizing  of  financial  legislation. 
In  1905  it  issued  a  statement  of  the  exact  amounts 
of  all  standing  appropriations,  as  well  as  a  list  of  the 
bills  then  before  the  legislature  which  in  any  manner 
involved  money  grants.  Such  a  statement,  in  itself, 
is  of  the  greatest  usefulness  to  the  members  in  en- 
abling them  to  exercise  a  more  intelligent  control  over 
appropriations.  A  searching  analysis  of  all  the  fi- 
nancial bills  proposed  at  a  session  is  very  essential.  In 

*  Governor  Higgins  of  New  York  first  gained  political  promi- 
nence as  chairman  of  the  Senate  Committee  on  Finance. 

-  191 


AMERICAN  LEGISLATURES 


hundreds  of  cases  members  vote  for  bills  without 
being  at  all  aware  of  the  fact  that  they  carry  an 
appropriation.  Were  their  attention  called  to  the 
amount  of  expenditure  involved,  they  would  be  far 
more  careful  in  their  scrutiny  of  such  individual 
measures.  Governors  of  commonwealths  have  often 
made  a  special  effort  to  effect  reform  in  financial  leg- 
islation. Governors  Odell  and  Higgins  of  New  York 
both  made  it  a  feature  of  their  administrations  to  in- 
sist upon  careful  financial  methods;  the  latter  spe- 
cifically announced  that  sufiicient  revenue  had  first  to 
be  provided  before  he  would  give  his  assent  to  any 
appropriation  bill.  Governor  Douglas  of  Massachu- 
setts, in  1905,  carefully  reviewed  the  financial  con- 
dition of  the  state  in  a  special  message  to  the  General 
Court. 

There  is  a  growing  tendency  to  make  permanent 
appropriations  for  certain  administrative  and  educa- 
tional activities  of  the  state.  Though  the  freedom  of 
legislatures  is  limited  by  this  practice,  it  is  of  course 
not  in  itself  harmful  as  long  as  the  appropriations  are 
originally  made  with  sufiicient  care  and  surrounded 
with  proper  safeguards.  In  fact,  some  of  the  ac- 
tivities in  which  the  states  are  now  engaged  could 
hardly  be  carried  on  with  the  best  of  success  were  it 
not  possible  to  assure  the  agents  and  representatives 
of  the  state  of  a  reasonably  permanent  income  to  be 
used  for  such  purposes.  Permanent  appropriations 
are  used  most  commonly  to  provide  for  salaries  of  of- 
fices created  by  law,  for  the  work  of  special  depart- 
ments or  commissions,  and  for  the  maintenance  of 
educational   and  charitable  institutions.     They  are 

192 


PROCEDURE  IN  STATE  LEGISLATURES 

permanent  in  the  sense  that  a  new  statute  is  not 
needed  at  every  session  to  keep  them  in  force,  and 
that  actual  expenses  incurred  under  them  will  be  paid 
out  of  the  treasury  without  annual  appropriations. 
A  very  common  example  of  this  kind  of  appropria- 
tion is  a  law  granting  the  proceeds  of  a  certain  tax 
(e.  g.,  a  two-fifth  mill  tax)  to  a  state  institution.  Such 
a  law  may  of  course  be  repealed  by  any  subsequent 
legislature,  but  the  amount  accruing  to  the  fund, 
prior  to  its  repeal,  will  be  paid  by  the  state  treasurer 
to  the  beneficiary  institution,  and  may  be  expended 
for  its  purposes.  In  a  nui?iiber  of  states,  however,  the 
constitution  provides  that  appropriations  can  be  made 
only  for  a  certain  time,  this  period  in  no  case  exceed- 
ing two  years.^  In  these  states  it  is  thus  impossible 
to  make  permanent  or  continuing  appropriations ;  but 
even  in  their  case,  though  appropriations  must  be 
renewed  annually  or  biennially,  the  fact  that  certain 
offices  and  institutions  have  to  be  maintained  does  it- 
self tend  to  make  a  large  number  of  appropriations 
continuous  in  fact,  though  not  in  form.  The  New 
York  general  appropriation  bill  is  composed  largely 
of  appropriations  which  are  permanent  in  fact.  In 
the  states  in  which  no  such  constitutional  restrictions 
exist,  the  legislature  can  of  course  legally  appropriate 
money  for  an  indefinite  period.  It  is  held  in  these 
states  that  such  a  general  law  is  sufficient  authority 
for  all  payments  under  it.^     In   Ohio,  where  per- 

*  Kansas,  Missouri,  Montana,  New  York,  Ohio,  Texas,  Missis- 
sippi, Nebraska. 

*  In  re  Continuing  Appropriations,  18  Col.,  192.     Nichols  v. 
Controller.  4  Stew,  and  P..  154.    State  v.  Burdick,  4  Wyo.,  272. 

"  .  193 


AMERICAN  LEGISLATURES 


manent  appropriations  are  forbidden,  the  Supreme 
Court  has  held  that  if  expenses  have  been  authorized 
without  an  appropriation  being  made  to  pay  them, 
and  if  the  expenses  are  actually  incurred,  they  create 
a  debt  against  the  state,  for  the  payment  of  which, 
however,  a  proper  appropriation  is  necessary.^  The 
states  in  which  permanent  appropriations  have  been 
most  freely  used  are  the  following:  Colorado,  Con- 
necticut, Iowa,  Minnesota,  New  Hampshire,  North 
Dakota,  South  Carolina,  Vermont,  West  Virginia,  and 
Wisconsin. 

It  is  a  provision  found  quite  generally  in  state  con- 
stitutions that  appropriations  shall  be  fixed  and  spe- 
cific. In  practice,  however,  while  the  specific  amount 
of  the  grant  must  be  given  in  the  law,  the  manner  in 
which  it  is  to  be  spent  is  frequently  left  to  the  dis- 
cretion of  officials.  Thus,  in  California,  an  appro- 
priation of  $100,000  for  the  support  and  maintenance 
of  a  Mining  Bureau  was  held  to  be  sufficiently  ex- 
plicit. But  this  would  not  be  the  case  where  no 
definite  sum  is  mentioned.  Thus  an  act  requiring  the 
controller  to  draw  warrants  for  such  sums  as  may  be 
due  the  state  printer,  would  not  be  a  valid  appropria- 
tion. Governor  Lanman  of  Texas,  in  a  recent  mes- 
sage severely  criticizes  the  practice  of  appropriating 
lump  sums  to  be  spent  at  the  discretion  of  officials, 
and  urges  the  desirability  of  itemized  and  specified 
appropriations.  It  must  be  said,  on  the  other  hand, 
that  effective  itemizing  could,  after  all,  come  only 
from  the  expert  officials  who  alone  have  the  necessary 
practical  knowledge  of  the  activities  and  works  con- 

^  State  V.  Medbury,  7  Ohio  S.,  522. 

194 


PROCEDURE  IN  STATE  LEGISLATURES 

templated  in  any  appropriation  bill.  Many  constitu- 
tions impose  limitations  on  the  power  of  legislatnjres 
to  make  appropriations  for  private  or  local  purposes. 
In  Illinois  such  appropriations  are  entirely  forbidden. 
In  New  York,  Michigan,  and  Virginia  they  necessitate 
a  two-thirds  vote  of  each  house.  In  a  large  number 
of  states  the  legislature  cannot  authorize  the  payment 
of  any  claim  under  a  contract  the  subject  matter  of 
which  is  not  provided  for  by  an  existing  law. 


195 


CHAPTER  VII 

LEGISLATIVE  APPORTIONMENTS  AND  ELECTIONS 

A  VERY  important  function  of  state  legislatures  con- 
sists in  the  apportionment  of  the  state  for  purposes 
of  congressional  and  local  elections.  Under  the 
democratic  theory  of  our  government,  the  principle 
has  been  quite  generally  embodied  in  constitutional 
law  that  the  districts  created  for  a  certain  electoral 
purpose  shall  be  as  nearly  equal  in  population  as 
possible.  In  some  of  the  older  states  there  are,  how- 
ever, still  in  existence  conditions  of  local  government 
which  make  for  very  unequal  representation.  The 
legislative  bodies  in  other  commonwealths  have,  more- 
over, frequently  strained  constitutional  theory  and 
law  for  the  purpose  of  arranging  the  electorate  in 
such  a  manner  as  to  bring  the  greatest  advantage  to 
the  dominant  party  in  the  matter  of  permanence  of 
power.  Congress  itself  in  the  earlier  part  of  our 
history  was  not  free  from  this  practice.  In  a  report 
made  to  the  Senate  of  the  United  States  in  April, 
1832,  by  a  committee  of  which  Webster  was  chair- 
man, it  was  stated  that  "the  language  of  the  Consti- 
tution upon  this  subject  is  equivalent  to  a  direction 
to  apportion  the  representation  among  the  states  ac- 

196 


LEGISLATIVE  APPORTIONMENTS 

cording  to  their  respective  numbers  as  nearly  as  may 
he.  If  exactness  cannot  from  the  nature  of  things 
be  obtained,  then  the  nearest  possible  approach  to 
exactness  ought  to  be  made.**^  The  committee  be- 
lieved that  the  process  theretofore  adopted  by  Con- 
gress was  unconstitutional  and  that  a  purely  mathemat- 
ical system  of  apportionment  should  be  substituted. 
Though  the  theory  of  this  report  was  not  adopted  for 
some  time,  Congress  finally  in  the  act  of  May  23, 
1850,  adopted  a  mathematical  basis  and  instructed  the 
secretary  of  the  interior  to  allot  to  the  several  states 
their  respective  numbers  of  representatives  after  the 
census  when  the  population  had  been  ascertained.^ 

In  most  states,  legislative  apportionments  are  based, 
with  more  or  less  exactness,  upon  population;  but 
geographical  lines  affect  this  in  a  marked  manner,  as 
in  some  states  counties  are  represented,  in  others 
townships,  in  still  others  groups  composed  of  these 
units.  Extreme  inequalities  of  representation  occur  in 
states  where  the  electorate  is  not  divided  according 
to  numbers,  but  exercises  its  function  as  grouped  in 
various  units  of  local  government.  This  system  is 
found  in  some  of  the  older  states  where  the  original 
privileges  of  local  units  of  government  have  occa- 
sionally been  preserved.  In  a  few  states  (New  Jersey, 
Rhode  Island,  South  Carolina,  Maryland)  the  Senate, 
like  the  Senate  of  the  United  States,  represents  units 
of  political  government.  In  South  Carolina  and  New 
Jersey  each  county  is  entitled  to  one,  and  only  one, 
senator.    The  inequality  thus  introduced  is  very  strik- 

» Webster,  Works,  ed.  1853,  III,  369. 

'  A  similar  act  has  been  passed  every  decade  since. 

-  197 


AMERICAN  LEGISLATURES 


mg  in  New  Jersey,  where  counties  range  from  12,000 
to  328,000  are  on  the  same  basis  in  this  respect.  In 
Maryland  each  county  is  entitled  to  one  senator,  and 
the  city  of  Baltimore  to  four.  As  a  consequence  the 
senator  from  Calvert  County  represents  approxi- 
mately 10,000  people,  while  each  of  his  colleagues 
from  the  city  of  Baltimore  represents  over  126,000. 
In  Rhode  Island,  where  each  town  is  entitled  to  one 
senator,  the  city  of  Providence  with  its  175,000  in- 
habitants is  put  in  the  same  rank  as  the  country  vil- 
lage numbering  a  few  hundred  persons.  A  similar 
system  is  used  for  the  Lower  House  in  a  number  of 
states  (Maine,  New  Hampshire,  Rhode  Island,  Ver- 
mont, and  Connecticut).  In  Vermont,  all  towns  and 
city  wards  are  on  a  basis  of  absolute  equality,  each 
being  entitled  to  one  member.  In  Connecticut,  older 
towns  have  two  members,  those  of  more  recent  origin 
and  often  of  larger  population  are  in  many  cases 
restricted  to  one.  In  the  other  states  mentioned,  the 
town  is  the  basis  of  representation,  each  unit  being 
as  a  rule  entitled  to  at  least  one  member.  Massa- 
chusetts alone  among  the  New  England  states  has 
placed  the  system  of  representation  in  both  houses 
on  a  numerical  basis.  It  was  formerly  the  universal 
custom  in  that  commonwealth  that,  where  a  number 
of  towns  composed  a  single  district  for  the  election 
of  a  representative,  the  office  was  passed  from  town 
to  town  in  regular  rotation.  This  system  is,  how- 
ever, gradually  being  abandoned;  and  in  an  indi- 
vidual instance  a  member  was  recently  re-elected  for 
a  fourth  term,  though  his  district  comprises  ten  towns. 
The  injustice  of  the  antiquated  systems  referred  to 

198 


LEGISLATIVE  APPORTIONMENTS 

above  appears  clearly  when  it  is  considered  to  what 
an  extent  the  cities  in  such  states,  which  frequently 
contain  the  majority  of  the  population  and  pay  by 
far  the  greater  portion  of  the  taxes,  are  under-repre- 
sented in  the  houses  of  the  legislature.  The  political 
results  of  this  unrepresentative  and  unproportional 
system  are  especially  deplorable.  The  scantily  popu- 
lated and  over-represented  rural  disti"icts  constitute 
areas  most  readily  subject  to  corruption,  and  elector- 
ates as  well  as  their  representatives  are  freely  bought 
and  trafficked  in.  Ordinarily  the  state  machine  in 
these  commonwealths  is  stronger  and  more  corrupt 
than  any  city  organization. 

In  New  York,  where  special  provision  is  made 
against  too  great  representation  of  the  largest  city, 
which  may  never  have  over  one-third  of  the  legis- 
lature, the  Senate  consists  of  fifty,  representing 
counties  or  groups  of  counties,  and  the  Assembly  of 
one  hundred  and  fifty,  each  man  representing  a 
county,  or  a  district  into  which  counties  are  divided 
in  accordance  with  population.  Pennsylvania  has  a 
similar  system.  In  Delaware,  the  Senate  consists  of 
seventeen  members  and  the  House  of  thirty-four 
chosen  from  the  hundreds  into  which  the  three  coun- 
ties of  the  state  are  divided.  In  the  Southern  states 
a  greater  uniformity  of  the  basis  of  representation 
exists  as  a  result  of  reconstruction.  South  Carolina 
alone  gives  one  senator  to  each  county.  In  the  ma- 
jority of  the  Southern  states,  senators  are  chosen  from 
special  single-member  districts.  For  the  member- 
ship of  the  Lower  House  most  of  these  states  take  the 
county  as  a  basis,  allotting  representatives  according 
•     199 


AMERICAN  LEGISLATURES 


to  population.  In  the  North  Central,  and  the  Western, 
states  the  prevailing  system,  subject  to  exceptions, 
is  that  of  single-member  districts  for  both  houses. 
In  Ohio  and  Missouri  this  system  is  combined  with 
county  representation.  In  Montana  and  Idaho  each 
county  is  entitled  to  one  senator,  whatever  its  popula- 
tion may  be.  In  Illinois  the  Senate  and  House  districts 
are  identical,  each  district  returning  one  senator  and 
three  representatives.  A  similar  arrangement  pre- 
vails in  Minnesota  and  North  Dakota.^ 

The  art  of  gerrjonandering  aims  to  eliminate  or  re- 
strict the  representation  of  the  minority  party 
through  an  arrangement  of  congressional  and  legis- 
lative districts,  which  by  combining  majority  and 
minority  communities  will  give  more  representatives, 
though  with  smaller  pluralities,  to  the  party  in  power. 
But  it  frequently  happens,  with  our  unsettled  politi- 
cal conditions,  that  in  a  sudden  reaction  this  narrow 
margin  may  be  overturned,  and  the  plan  designed  to 
render  one  party's  stay  in  power  of  long  duration  is 
converted  to  the  advantage  of  its  opponents.  By  a 
shrewder  use  of  this  method,  the  vote  of  the  opposi- 
tion is  massed  in  as  few  districts  as  possible,  leaving 
the  remainder  ordinarily  an  easy  conquest  for  the 
dominant  party.  From  the  point  of  view  of  party 
interest,  this  plan  is  in  the  long  run  usually  found 
a  more  profitable  one  than  that  in  which  the  new 
arrangement  is  superficial  and  the  party  margin  dan- 
gerously small.  It  is  also  more  alluring  to  the  ordi- 
nary legislator,  as  it  takes  far  better  care  of  local 

^For   a   fuller   discussion   see  Haynes,   **  Representation  in 
State  Legislatures.'* 

200 


LEGISLATIVE  APPORTIONMENTS 

and  special  interests  than  its  earlier  counterpart,  which 
is  designed  more  for  the  benefit  of  the  party  at  large. 
In  the  eyes  of  the  politician,  as  one  of  the  most  scien- 
tific of  reapportionment  architects  cynically  re- , 
marked,  ''apportionments  are  not  made  to  keep  men  I 
in  Congress,  but  to  permit  other  men  to  get  there.  "^ 
On  the  other  hand,  in  states  where  the  federal  organ- 
ization is  strong,  the  wishes  of  the  majority  congress- 
men often  play  a  predominant  part  in  the  division 
and  construction  of  districts.  Sometimes  advantage 
is  taken  of  rearrangement  opportunities  to  eliminate 
a  member  not  in  favor  with  the  dominant  forces  by 
consolidating  his  district  with  that  of  a  neighbor  of 
greater  local  strength. 

Types  of  irregularly  shaped  congressional  districts, 
framed  and  fashioned  so  as  to  further  special  and 
personal  political  interests,  are  found  in  all  sections 
of  the  country.  Examples  of  the  so-called  "shoe- 
string" districts  exist  in  many  states,  although 
the  most  noteworthy  instances  were  formed  in  the 
South  during  the  struggle  for  race  supremacy  in 
politics,  when  the  gerrymander  was  frequently  re- 
sorted to  as  a  convenient  method  of  eliminating,  or 
at  least  minimizing,  negro  influence.  Mississippi, 
Alabama,   Missouri,,   and   South   Carolina  furnished 

*  W.  T.  Price,  who  enunciated  this  theory  in  the  words  above, 
furnishes  a  striking  example  of  its  occasional  truth  in  practice. 
In  1881  Senator  Price  was  chairman  of  the  joint  committee  on 
Apportionment  in  the  Wisconsin  legislature.  Kepeatedly  dis- 
appointed in  his  aspirations  for  the  congressional  nomination, 
he  came  to  an  understanding  with  the  Democratic  leader  of  the 
Senate,  by  which  they  carved  out  districts  fitted  to  their  needs, 
sending  them  to  Washington  in  1882  and  again  in  1884. 

•  201 


AMERICAN  LEGISLATURES 


\ 


the  most  striking  examples  of  freak  districts,  com- 
posed of  counties  of  divergent  interest,  and  connected 
in  some  cases  merely  by  corners.     The  apprehended 

j  danger  being  greatly  lessened,  the  present  apportion- 
ments are  not  nearly  so  unreasonably  shaped  as  those 

Vof  previous  decades.  Illinois  to-day  presents  in  cer- 
tain of  her  congressional  districts  convenient  exam- 
ples of  ''scientific  gerrymandering."  The  ''saddle 
bag  district"  (the  Twenty-third),  comprises  two 
groups  of  counties  at  different  sides  of  the  state,  so 
connected  as  to  crowd  as  many  Democratic  counties 
as  possible  into  one  district  and  thus  secure  Repub- 
lican seats  in  nearby  districts  by  eliminating  the  vote 
of  hostile  localities.  The  "belt  line  district" 
(Eleventh),  so-called  because  it  runs  around  Cook 
County,  and  the  Fifteenth  district,  which  is  similar 
in  shape,  were  also  given  their  peculiar  form  for 
party  reasons.  In  this  state  as  in  a  number  of  others, 
the  conflicting  parties  have  been  competitors  in  freak 
apportionment,  the  Democratic  gerrymander  of  1893 
rivaling  its  Republican  counterparts  of  1881  and 
1901.  Among  the  most  striking  examples  of  oddly- 
shaped  congressional  districts  are  the  following: 
The  Fourteenth  in  Missouri,  the  original  shoestring 
district,  which  formerly  had  the  largest  population  of 
any  district  in  the  state ;  the  Fourth  and  the  Seventh 
in  Alabama;  the  Third  in  Iowa.  The  more  uniform 
development  of  the  economic  life  of  our  country  has, 
however,  lessened  the  evil  effects  of  grouping  the 
electorate  in  districts  of  somewhat  bizarre  form. 

There  are  many  examples  to  prove  the  dangerous 
nature  of  this  weapon  to  its  wielders.    Not  long  after 

202 


LEGISLATIVE  APPORTIONMENTS 

the  Democratic  rearrangement  of  1893  in  Illinois, 
the  party  had  fewer  representatives  from  that  state 
in  Congress  than  at  any  date  for  decades.  The  Ohio 
Democrats,  in  1892,  were  able  by  skilful  redistricting 
to  place  enough  Democratic  counties  in  McKinley's 
district  to  deprive  him  of  his  seat  in  Congress.  But 
as  a  direct  result  McKinley  was  forced  into  a  larger 
field,  the  reaction  making  him  governor  of  Ohio  in 
1893  and  again  in  1895.  In  1881,  the  Wisconsin 
Republicans  divided  their  state  so  as  to  return  three 
Democrats  and  six  Republicans  to  Congress,  but  in 
the  election  of  the  following  year,  the  figures  were 
exactly  reversed.  Although,  in  1890,  the  Democratic 
control  of  Wisconsin  was  complete  and  the  party 
gerrymanders  were  masterful,  the  year  1892  saw  the 
Republican  members  of  Congress  from  that  state 
increased  in  number  from  one  to  four;  and  in  1894 
a  solid  Republican  delegation  was  returned.  Certain 
states  have,  through  the  retention  of  antique  systems 
of  town  and  borough  or  county  elections,  acquired  an 
extreme  inequality  of  local  representation  without 
resorting  to  the  weapon  of  the  gerrymander.  In 
New  England,  the  birthplace  of  the  geirrymander, 
we  find  examples  of  its  smoothest  working.  New 
Hampshire  and  Maine,  in  spite  of  difficulties  raised 
by  strict  constitutional  provisions,  succeed  in  limiting 
the  minority  to  the  minimum  of  local  representation. 
The  apportionment  is  in  most  states  made  at  the 
session  succeeding  the  decennial  year  when  the  popu- 
lation of  the  state  has  been  ascertained  by  the  national 
census;  some  states  also  use  the  intermediate  census 
made  by  their  own  government  as  a  basis  for  electoral 
.    203 


AMERICAN  LEGISLATURES 


divisions.  The  common  practice  assigns  the  division 
of  the  state  altogether  to  the  legislature,  but  in  some 
states,  as  in  Michigan  and  New  York,  the  legislature, 
after  providing  for  the  Senate  districts,  merely  deter- 
mines the  number  of  members  of  the  Lower  House  to 
which  each  county  is  entitled,  and  leaves  the  fixing 
of  the  district  boundaries  to  the  local  authorities.^ 
^  In  order  to  limit  the  discretion  of  legislatures  in 
the  matter  of  apportionment  and  to  oblige  them  to 
make  a  more  equitable  division  of  the  electorate, 
strict  constitutional  provisions  have  in  many  states 
been  adopted.  A  good  example  of  a  detailed  regula- 
tion is  found  in  the  New  York  constitution  of  1895 
(Art.  3,  Sec.  2).  This  constitution  provides  that  the 
Senate  shall  consist  of  fifty  members,  the  Assembly 
of  150;  that  the  apportionment  is  to  be  changed  by 
the  legislature  after  the  enumeration  of  1905  and 
every  ten  years  thereafter.  The  Senate  districts  are 
to  contain  as  nearly  equal  a  number  of  inhabitants 
as  may  be ;  they  are  to  be  compact  in  form,  consisting 
of  contiguous  territory.  No  county  is  to  be  divided 
save  to  make  two  or  more  Senate  districts  wholly 

*  In  1893,  in  the  case  of  Baird,  et  al.,  v.  Supervisors  of  Kings 
County  (138  N.  Y.,  95),  the  New  York  Court  of  Appeals  held 
unconstitutional  a  division  of  a  county  by  the  local  authorities 
into  Assembly  districts  whose  population  ranged  between  31,685 
and  102,805.  A  year  later,  when  this  unequal  representation 
had  been  modified  so  that  the  districts  varied  only  from  48,944 
to  61,263,  the  arrangement  was  held  valid  by  the  Court  of  Ap- 
peals, even  though  it  was  admitted  that  the  apportionment  had 
been  made  with  the  object  of  giving  equal  representation  in 
the  Lower  House  from  the  county  to  two  parties  quite  unequal 
in  strength.     (Matter  of  Baird,  et  al,  142  N.  Y.,  523,  1894.) 

204 


LEGISLATIVE  APPORTIONMENTS 

within  such  county.  No  county  is  to  have  more  than 
one-third  of  all  the  senators,  or  any  two  adjoining 
counties  more  than  one-half.  If  a  county  having 
three  or  more  senators  is  entitled  to  a  greater  num- 
ber, the  senators  allotted  to  it  shall  be  given  in  addi- 
tion to  the  fifty  already  provided  for.  Each  county, 
with  one  exception,  is  entitled  to  at  least  one  member 
of  the  Assembly ;  in  the  counties  entitled  to  more  than 
one  member,  the  Board  of  Supervisors  or  the  Com- 
mon Council  make  the  apportionment.  But  each  As- 
sembly district  must  be  wholly  within  a  Senate  dis- 
trict, and  no  township  or  city  block  is  to  be  divided. 
Legislative  apportionment  is  subject  to  review  by  the 
Court  of  Appeals  at  the  suit  of  any  citizen. 

The  New  York  Court  of  Appeals  had  before  this 
shown  itself  rather  reluctant  to  interfere  with  the 
legislative  discretion  in  ihatters  of  apportionment. 
Great  inequalities  had  existed  under  the  later  acts. 
Thus  the  act  of  1879  gave  one  representative  to  Suf- 
folk County  with  50,330  inhabitants;  two  to  Cat- 
taraugus with  only  45,737,  and  three  to  St.  Lawrence 
with  78,014.  Governor  Robinson  spoke  of  these  ine- 
qualities as  admitting  of  no  apology  or  excuse.  But 
he  was  powerless  in  the  matter,  since  a  veto  of  the 
law  would  have  left  the  still  more  objectionable  act  of 
1866  in  force.  Under  the  act  of  1892  also  there  were 
some  glaring  inequalities;  the  Twelfth  Senate  dis- 
trict had  only  105,720  inhabitants,  the  adjoining 
Thirteenth  241,138.  This  time  St.  Lawrence  with 
80,679  inhabitants  received  only  one  assemblyman, 
while  Dutchess  with  75,078  received  two,  and  Albany 
with  156,748  received  four.  The  Court  of  Appeals, 
.    205 


AMERICAN  LEGISLATURES 


which  was  called  upon  to  decide  on  the  constitution- 
ality of  this  act,  refused  to  interfere  with  the  discre- 
tion of  the  legislature.^  The  principle  upon  which 
the  Court  based  its  decision  was  stated  in  the  follow- 
ing language:  *'The  discretion  necessarily  vested  in 
the  legislature  must  be  finally  disposed  of  by  it,  unless 
there  is  such  an  abuse  of  that  discretion  as  to  clearly 
show  an  open  and  intended  violation  of  the  letter  and 
spirit  of  the  Constitution."  The  Court  was  also 
strongly  impressed  with  questions  of  expediency  in 
the  situation,  as  is  apparent  from  the  argument  in  the 
opinion,  that  the  effect  of  setting  aside  an  apportion- 
ment act  would  be  to  cause  every  subsequent  act  to 
be  brought  before  the  courts  for  review,  which  might 
happen  at  a  critical  time;  to  originate  the  greatest 
confusion  at  the  impending  election  with  a  possible 
total  suppression  of  it;  and  at  all  events  to  continue 
in  force  an  act  containing  greater  inequalities  than 
the  one  attacked.  These  considerations  were  sufficient 
to  induce  the  Court  to  say  that  *'only  in  a  case  of 
plain  and  gross  violation  of  the  spirit  and  letter  of 
the  Constitution  should  it  exercise  the  power." 

The  Supreme  Court  of  Illinois  has  been  similarly 
disinclined  to  interfere  with  legislative  apportion- 
ments.^ It  held  that  the  courts  cannot  inquire  into 
the  motives  which  have  influenced  the  legislature  in 
making  an  apportionment.  If  the  constitutional  re- 
quirements of  compactness  of  territory  and  equality 
of  population  have  been  applied  at  all,  the  Court  will 
not  interfere,  though  the  nearest  possible  approxima- 

» People  ex.  rel.  Carter  v.  Eiee,  135  N.  Y.,  473  (1892). 

*  People  ex  rel.  Woodyatt  v.  Thompson,  155  111.,  451  (1895). 

206 


LEGISLATIVE  APPORTIONMENTS 

tion  to  these  requirements  may  not  have  been  attained. 
The  Court  held  that  an  act  apportioning  senatorial  dis- 
tricts is  unconstitutional,  if  it  appears  that  the  consti- 
tutional requirements  of  compactness  of  territory  and 
equality  in  population  have  been  wholly  ignored,  and 
not  considered  or  applied  to  any  extent.  But  if  con- 
sidered and  applied,  although  to  a  limited  extent  only, 
subject  to  the  more  definite  limitations,  the  act  is 
constitutional,  although  the  legislature  may  have  im- 
perfectly performed  its  duty.  *  *  ...  As  the  courts 
cannot  make  a  senatorial  apportionment  directly, 
neither  can  they  do  so  indirectly.  There  is  a  vast 
difference  between  determining  whether  the  principle 
of  compactness  of  territory  has  been  applied  at  all  or 
not,  and  whether  or  not  the  nearest  practical  approxi- 
mation to  perfect  compactness  has  been  obtained.  The 
first  is  a  question  for  the  courts  to  determine;  the 
latter  is  for  the  legislature. ' ' 

The  Supreme  Court  of  Kansas  in  an  earlier  case 
leaves  considerable  discretion  to  the  legislature  in  the 
matter  of  apportionment.^  Justice  Brewer  says,  in  giv- 
ing the  opinion  of  the  Court,—* '  An  apportionment  can- 
not be  overthrown  because  the  representatives  are  not 
distributed  with  mathematical  accuracy,  according  to 
the  population.  Something  must  He  left  to  the  discre- 
tion of  the  legislature,  and  it  may,  without  invalidat- 
ing the  apportionment,  make  one  district  of  a  larger 
population  than  another.  It  may  rightfully  consider 
the  compactness  of  territory,  the  density  of  popula- 
tion, and  also,  we  think,  the  probable  changes  of  the 
future  in  making  the  distribution  of  representatives. ' ' 

*Prouty  V.  Stover,  11  Kans.,  235  (1873). 
-207 


AMERICAN  LEGISLATURES 


A  most  extreme  position  was  taken  by  the  Supreme 
Court  of  Appeals  of  Virginia^  in  declaring  that  ''the 
laying  off  and  defining  the  congressional  districts  is 
the  exercise  of  a  political  and  discretionary  power  of 
the  legislature,  for  which  they  are  amenable  to 
the  people  whose  representatives  they  are."  This 
opinion,  which  was  given  by  the  Court  without  any 
discussion  of  the  question,  was  declared  although 
specific  constitutional  restrictions  upon  the  legislative 
power  had  been  invoked. 

Courts  in*  other  jurisdictions  have  recently  taken  a 
more  decisive  stand  against  the  abuse  of  legislative 
discretion  in "  districting  the  state  for  electoral  pur- 
poses. The  state  of  Michigan  suffered  a  good  deal 
from  frequent  unscrupulous  gerrymandering,  as  the 
constitution  did  not  prescribe  a  definite  period  of  ap- 
portionment. The  Republicans  in  1885,  and  the  Demo- 
crats in  1891,  in  the  first  case  upon  a  majority  of  less 
than  4,000  in  a  total  vote  of  400,000,  so  gerry- 
mandered the  senatorial  districts  as  to  yield  their  own 
party  twenty-one  senators  and  their  opponents  eleven. 
Under  the  apportionment  of  1891,  eight  counties 
with  a  population  of  40,000  were  formed  into  a  dis- 
trict having  one  senator,  and  nine  adjoining  counties 
with  97,000  inhabitants  were  given  the  same  repre- 
sentation. Both  of  the  acts  mentioned  were  held  un- 
constitutional by  the  Supreme  Court,  which  decided 
among  other  things  that  it  was  not  a  due  exercise  of 
legislative  discretion  under  the  constitution,  to  give  a 
county  of  less  population  than  another  greater  repre- 
sentation, and  that  the  discretion  of  the  legislature 

»Wise  V.  Bigger,  79  Va.,  269  (1884). 
208 


LEGISLATIVE  APPORTIONMENTS 

must  be  honestly  exercised  so  as  to  preserve  the 
equality  of  representation  as  nearly  as  may  be.^  The 
judges,  in  their  written  opinions,  used  very  strong 
language  in  denouncing  the  practice  of  gerrymander- 
ing. Chief  Justice  Morse  declared  that  the  courts 
alone  could  in  this  matter  save  the  rights  of  the  peo- 
ple and  assure  them  of  equality  in  representation; 
and  another  justice  said,  * '  Such  laws  breed  disrespect 
for  all  law,  for  law  makers  become  law  breakers. '  * 

The  Supreme  Court  of  Wisconsin  has  taken  espe- 
cially advanced  ground  in  enforcing  constitutional 
limitations  upon  the  discretion  of  the  legislature.^ 
The  court  decided  that  * '  an  apportionment  act  may  be 
judicially  declared  void  for  violation  of  a  constitu- 
tional requirement  of  apportionment  according  to  the 
number  of  inhabitants,  when  the  disparity  in  their 
numbers,  in  the  districts  created,  is  so  great  that  it 
cannot  possibly  be  justified  as  an  exercise  of  judg- 
ment or  discretion.  A  constitutional  requirement  of 
apportionment  according  to  the  number  of  inhab- 
itants in  creating  Assembly  and  Senate  districts,  is 
violated  by  an  apportionment  act  in  which,  with  the 
average  population  of  51,117  for  a  Senate  district, 
the  number  of  inhabitants  in  the  respective  districts 
created  ranges  from  37,000  to  68,000;  and  in  the 
Assembly  districts,  with  an  average  of  16,868,  it 
ranges  from  6,000  to  38,000.  Such  an  act  is  not  an 
*  apportionment '  in  any  sense  of  the  word,  but  is  a 

'Supervisors  of  Houghton  County  v.  Blacker,  92  Mich.,  638. 
Giddings  v.  Blacker,  93  Mich.,  1  (1892). 

2  State  ex  rel.  Attorney  General  v.  Cunningham,  81  Wis.,  440. 
Lamb  v.  Cunningham,  83  Wis.,  90  (1892). 

14  209 


AMERICAN  LEGISLATURES 


direct  and  palpable  violation  of  the  Constitution,  bear- 
ing upon  its  face  intrinsic  evidence  that  no  judgment 
or  discretion  was  exercised  in  an  attempt  to  comply 
with  the  constitution.  The  whole  act  must  be  held 
void  if  constitutional  requirements  are  violated  in 
the  formation  of  some  of  the  districts/'  In  the 
second  case  the  Court  decided  that  ''any  number  of 
legislative  violations  of  plain  and  unambiguous  con- 
stitutional provisions  regarding  the  apportionment  of 
legislative  districts  cannot  be  regarded  as  abrogating 
such  provisions.  .  .  .  The  unnecessary  inequalities 
under  the  apportionment  of  July,  1892,  such  as  one 
Assembly  district  having  three  times  the  popula- 
tion of  another  or  one  Senate  district  having  double 
that  of  another,  are  held  to  render  the  act  invalid. ' ' 

The  Supreme  Court  of  Indiana  in  the  same  year 
also  announced  the  doctrine  of  a  stricter  limitation  of 
legislative  discretion.^  It  held  in  substance:  "The 
legislature  has  no  discretion  to  make  an  apportion- 
ment in  disregard  of  the  enumeration  of  inhabitants 
authorized  to  vote,  as  provided  for  in  the  Constitu- 
tion; and  because  exact  equality  is  not  possible,  the 
General  Assembly  is  not  excused  from  making  such 
an  apportionment  as  will  approximate  the  equality 
required  by  the  Constitution.  This  rule  forbids  the 
formation  of  districts  containing  large  fractions  un- 
represented where  it  is  possible  to  avoid  it,  while 
other  districts  are  largely  over-represented.  While 
the  General  Assembly  has  much  discretion  in  dispos- 
ing of  the  fractions  of  the  unit  of  representation,  yet 
it  is  not  beyond  control.    No  scheme  for  senatorial  dis- 

^ Parker  v.  State,  133  Ind.,  178  (1892). 
210 


LEGISLATIVE  APPORTIONMENTS 

tricts  can  be  lawfully  devised  in  which  a  county  hav- 
ing less  than  the  unit  of  population  for  a  senatorial 
district  can  legally  be  entitled  to  vote  for  two  senators, 
where  the  constitutional  provisions  require  equality  in 
representation.  A  county  having  more  than  the  repre- 
sentative unit  of  population  cannot  be  denied  the  right 
to  a  separate  representative. ' ' 

In  deciding  upon  questions  of  apportionment  the 
courts  often  face  a  difficult  problem  in  the  fact  that 
by  declaring  the  act  under  consideration  void,  the 
state  is  left  at  the  mercy  of  still  more  intolerable  con- 
ditions under  earlier  acts.  In  the  Michigan  cases  of 
1892,  the  Supreme  Court  held  void  not  only  the 
apportionment  of  1891,  but  also  the  act  of  1885, 
under  which  three  elections  had  been  held;  and  pre- 
scribed that  election  notices  should  be  issued  by  the 
secretary  of  state  under  the  old  law  of  1881,  unless  a 
new  and  valid  apportionment  should  be  made  by  the 
legislature.  In  the  Wisconsin  cases  the  Court  took 
cognizance  of  electoral  conditions,  but,  refusing  to  be 
influenced  by  them,  declared  only  the  act  before  it 
invalid.  It  did  not  investigate  the  earlier  acts  as  to 
constitutionality,  although  the  separate  opinions  show 
that  these  acts  were  in  the  same  class  with  the  law 
held  void.  The  Court,  however,  did  suggest  action  ] 
by  extra  session,  as  alternative  to  elections  under  a  ' 
previous  act.  While  the  Supreme  Court  of  Michigan 
decided  the  Michigan  acts  of  1891  and  1885  both  un- 
constitutional, the  Indiana  Court  declared  contrary 
to  the  constitution  two  acts  of  1891  and  1879,  but 
refused  to  consider  the  constitutionality  of  the  act  of 
1885,  as  this  question  had  not  been  brought  before  it. 
•  211 


AMERICAN  LEGISLATURES 


This  matter  was  given  careful  consideration  by  the 
New  York  Court  of  Appeals,  but  an  opposite  conclu- 
sion was  arrived  at;  the  very  fact  that  the  earlier 
acts  were  also  contrary  to  the  constitution  was  made 
a  reason  for  upholding  the  act  before  the  Court.  Re- 
garding this  subject,  Justice  Peckham  used  the  fol- 
lowing language:^  "If  the  act  of  1892  is  void,  the 
act  of  1879  is  also  plainly  void  and  no  election  of 
members  of  the  Assembly  should  be  tolerated  under 
it.  This  might  relegate  the  people  to  the  act  of  1866, 
and  thus  we  might  have  an  attempt  at  an  election  for 
members  of  the  Assembly  under  an  act  a  quarter  of  a 
century  old  and  a  legislative  representation  of  the  peo- 
ple of  that  time.  This  would  be  a  travesty  on  the  law 
and  upon  all  ideas  of  equality,  propriety  and  justice. 
We  are  compelled  to  the  conclusion  that  this  act  of 
1892  successfully  withstands  all  assaults  upon  it  and 
is  a  valid  and  effective  law. ' ' 

In  order  to  eliminate  the  evils  accompanying  the 
present  system  of  apportionment,  with  its  strong 
temptation  to  gerrymander,  various  alternative  plans 
have  been  proposed.  They  have,  however,  not  as  yet 
been  proven  in  practice  to  possess  the  remedial  virtues 
urged  in  their  behalf.  According  to  the  customary 
attitude  among  the  people,  a  great  deal  of  attention 
has  been  devoted  to  the  effects  of  the  present  inade- 
quate system,  while  comparatively  little  has  been  paid 
to  its  source.  The  palliatives  that  have  been  sug- 
gested include  elections  at  large,  apportionment  by 
congressional  action,  cumulative  voting  and  the  quota 
system  of  proportional  representation;  but  while  ad- 

*  People  ex  rel.  Carter  v.  Eice,  135  N.  Y.,  509. 
212 


LEGISLATIVE  APPORTIONMENTS 

mitting  the  special  advantages  of  each,  it  is  not  clearly- 
evident  that  any  one  of  the  proposed  changes  would 
completely  bring  about  the  desired  result  of  fair  and 
equal  representation  of  interests  and  sections  as  well 
as  of  population.  The  system  of  minority  representa- 
tion in  use  in  Illinois,  where  each  Assembly  district 
elects  three  members  and  every  voter  is  given  three 
votes,  has  resulted  occasionally  in  entirely  destroying 
freedom  of  choice,  and  making  a  nomination  equiva- 
lent to  election.  As  the  members  of  the  minority  party 
can  always  by  massing  their  votes  be  sure  of  elect- 
ing one  representative,  arrangements  have  often  been 
made  by  the  machines  of  both  parties  whereby  only 
tliree  candidates,  two  representing  the  majority  and 
one  the  minority,  ar^  placed  in  nomination.  In  a  re- 
cent election  in  Cook  County,  only  fifty-nine  candi- 
dates had  been  nominated  to  fiU  the  fifty-seven  posi- 
tions available.  This  assurance  of  election  had  a 
most  undesirable  effect  on  the  quality  of  the  material 
selected  by  the  political  organizations  to  fill  legisla- 
tive positions. 

Under  the  usual  constitutional  provision  that  each 
house  shall  judge  of  the  election  and  qualifications  of 
its  members,  the  federal  House  of  Representatives 
and  the  houses  of  the  state  legislatures  determine 
authoritatively  and  finally,  in  the  case  of  a  contest, 
who  is  to  be  admitted  to  the  rights  of  membership. 
The  courts  do  not  ordinarily  interfere  with  the  exer- 
cise of  this  power  unless  specific  constitutional  provi- 
sions  exist.^      Specific   qualifications   are   often   de- 

*  Hughes  V.  Felton,  11  Colo.,  489.  Coddington  v.  Buffett 
(Md.),  45  Atl.,  204.  Naumann  v.  Canvassers  of  Detroit,  73 
Mich.,  252.    See,  however,  T/i  re  Gunn,  50  Kans.,  155  (1893). 

213 


AMERICAN  LEGISLATURES 


manded  by  the  constitution  for  membership  in  the 
legislature.  It  is  not,  however,  common  for  the  legis- 
lature to  be  called  upon  to  vacate  a  seat  on  account 
of  the  absence  of  such  constitutional  qualifications. 
Among  the  qualifications  most  generally  required 
for  the  Senate,  are  residence  in  the  state  (the  maxi- 
mum, seven  years,  in  New  Hampshire;  six  years,  in 
Kentucky),  and  residence  in  the  district  which  the 
senator  represents  (maximum,  two  years,  Illinois  and 
Louisiana).  Often  there  is  an  age  qualification  (the 
maximum  being  thirty  years,  in  six  states) .  For  mem- 
bership in  the  Lower  House  the  maximum  qualifica- 
tion of  residence  is  five  years  (Illinois  and  Louisiana), 
and  of  residence  in  the  district  represented,  two 
years.  A  few  states  have  an  age  qualification 
(twenty-one,  twenty-four,  or  twenty-five  years).  In 
West  Virginia,  salaried  officials  of  a  railway  are  ex- 
cluded; in  Kansas,  Georgia,  and  West  Virginia,  any 
person  who  has  embezzled  or  misused  public  money; 
in  Nebraska,  any  one  concerned  in  a  state  contract. 
Some  constitutions  provide  that  officers  of  the  federal, 
the  state,  or  any  city  or  county,  administration  are  not 
eligible  to  the  legislature.  But  it  has  been  held  that 
such  inferior  officers  as  justices  of  the  peace  and 
deputy  clerks  of  court  are  not  within  this  prohi- 
bition.^ 

The  cause  for  contesting  an  election  may  be,  of 
course,  the  absence  of  the  qualifications  demanded  by 
the  constitution;  but  it  is  more  usually  based  upon 
some  alleged  irregularity  in  the  election,  such  as  a 

^  Opinion  of  the  Justices,  68  Me.,  594.  People  v.  Green,  58 
N.  Y.,  295. 

214 


LEGISLATIVE  APPORTIONMENTS 

miscount,  or  the  presence  of  bribery  or  other  corrupt 
practices.  The  discretionary  nature  of  the  power 
over  elections  renders  it  very  important,  especially  at 
times  of  great  political  excitement  and  close  party 
votes,  when  it  will  generally  be  easy  to  adduce  at  least 
plausible  evidence  of  illicit  practices  in  the  election  of 
members. 

The  procedure  followed  in  cases  of  membership 
contests  varies  in  the  different  legislative  bodies,  and 
depends  entirely  upon  the  convenience  and  desires  of 
the  legislature  in  question,  as  in  this  matter  no  legis- 
lature is  bound  by  the  acts  or  rules  of  its  predeces- 
sors. Nor  will  the  courts  interfere  in  this  procedure. 
It  is  indeed,  ordinarily  held  that  they  may  by  man- 
damus compel  the  election  officers  to  return  the  results 
of  a  vote ;  but  the  legislature  is  not  bound  by  an  elec- 
tion certificate  in  determining  the  right  of  a  member 
to  a  seat.  The  Supreme  Court  of  Michigan  refused  to 
grant  a  writ  of  mandamus  at  the  instance  of  a  candi- 
date for  the  office  of  state  senator  to  compel  the  Board 
of  Canvassers  to  recount  the  ballots,  on  the  ground 
that,  the  Senate  being  the  absolute  judge  of  the  elec- 
tions of  its  own  members,  a  recount  would  be  mean- 
ingless unless  ordered  by  that  body.^  The  procedure 
in  election  contests  before  the  United  States  House  of 
Representatives  is  governed  by  the  provisions  of  the 
Revised  Statutes  (Sees.  105  to  130).  This  statute  is 
very  anomalous  in  that,  though  created  by  the  com- 
plete lawmaking  agency  and  embodied  in  the  statutory 
law,  it  is  of  course  not  binding  on  the  House  of  Repre- 
sentatives itself,  no  more  than  the  rules  of  a  former 
*Naumaim  v.  City  Canvassers  of  Detroit,  73  Mich.,  252. 


AMERICAN  LEGISLATURES 


House  would  be,  since  the  House  alone  is  the  judge  of 
the  qualifications  and  election  of  its  members.  The 
House  can  therefore  at  any  time  depart  from  this 
statute,  make  different  requirements,  and  follow  a  dif- 
ferent procedure.  But  as  long  as  the  House  itself 
adheres  to  the  statute,  it  is  of  course  binding  on  indi- 
vidual contestants.  Under  the  statute,  notice  of  the 
contest  must  be  given  within  thirty  days  after  the  re- 
sults of  an  election  have  been  determined.  The  member 
whose  right  is  assailed  must  answer  within  thirty 
days,  and  ninety  days  are  allowed  for  taking  testi- 
mony. There  are  explicit  requirements  with  regard 
to  the  taking  of  depositions  and  their  submission  to 
the  House.  An  election  contest  differs  from  an  ordi- 
nary action  at  law  in  that  it  is  not  looked  upon  as 
a  suit  between  two  persons  for  a  seat  in  Congress, 
but  as  a  public  matter  in  which  the  interests  of  the 
constituents  are  involved.  It  is  therefore  not  per- 
missible that  such  a  contest  be  settled  by  stipulation 
between  the  parties,  nor  can  judgment  be  taken  by 
default ;  but  the  case  must  be  decided  after  thorough 
investigation  of  the  evidence.^  When  the  qualifica- 
tions of  a  person  for  a  seat  in  the  legislature  are 
questioned  it  is  the  legal  requirements  that  are  in- 
volved and  not  his  moral  character.  The  latter  can 
be  attacked  only  in  proceedings  for  expulsion.  In 
this  matter,  too,  the  discretion  of  the  legislature  is 
usually  unlimited,  with  the  exception  that  a  member 
reelected  by  his  constituents  after  expulsion  may  not 
ordinarily  be  expelled  for  a  second  time.  The  United 
States  House  of  Representatives  has  decided  that  a 
*See  Follett  v.  Delano,  2  Bart.  Elect.  Cas.,  113. 
216 


LEGISLATIVE  APPORTIONMENTS 

member  may  be  expelled  for  offenses  committed  be- 
fore his  election,  especially  if  they  were  not  known  to 
his  constituents.^ 

A  question  of  great  political  importance  arises 
when  a  legislative  house  is  divided  into  two  bodies, 
each  of  which  claims  to  be  the  rightful  house,  legally 
authorized  to  transact  the  legislative  business.  The 
general  rule  in  such  cases  is  to  consider  that  body  as 
legally  organized  which  has  maintained  the  regular 
forms  of  organization  according  to  the  laws  and 
usages  of  the  legislature.  But  the  questions  of  fact 
arising  under  this  legal  principle  are  often  very  diffi- 
cult to  determine,  and  give  rise  to  serious  political 
danger.  Where  a  house  contains  hold-over  members, 
its  organization  is  perpetual,  and  difficulties,  though 
by  no  means  excluded,  are  not  so  apt  to  arise,  because 
the  new  members  are  not  entitled  to  create  a  separate 
organization.  A  federal  statute  empowers  the  clerk 
of  the  preceding  House  of  Representatives  to  preside 
at  the  organization  of  the  new  House,  and  to  inscribe 
on  a  roll  the  names  of  representatives  whose  creden- 
tials are  sufficient  under  the  law.  There  is  of  course 
some  danger  of  an  abuse  of  this  power  at  times  of 
close  party  struggle,  and  great  legal  difficulty  is  pre- 
sented by  the  fact  that  the  new  House  in  determining 
upon  its  organization  cannot  be  bound  by  such  a 
statute,  although  it  may  voluntarily  submit  to  it. 

A  number  of  serious  controversies  between  rival 
houses   have    occurred   in   the   states.      The   United 

*See  ** Congressional  Globe,"  Forty-second  Congress,  3nd 
Session,  Part  III,  p.  1651. 

-217 


AMERICAN  LEGISLATURES 


States  Senate  in  determining  upon  the  elections  of  its 
own  members  may  be  called  upon  to  decide  a  contest 
between  factional  houses  as  far  as  a  senatorial  elec- 
tion is  concerned.  In  the  case  of  Sykes  v.  Spencer/ 
the  Senate  refused  to  recognize  the  certificates  of  elec- 
tion of  members  of  a  state  legislature  who  were  not 
in  its  opinion  legally  entitled  thereto,  while  it  ac- 
cepted the  votes  of  members  who  though  without  such 
certificates  were  in  its  opinion  legally  elected.  In  the 
words  of  Senator  Carpenter,  *'it  inquired  into  the 
fact  rather  than  the  evidence  of  fact.''  It  was  de- 
cided in  an  Alabama  case,^  that  a  body  of  men  claim- 
ing to  be  the  General  Assembly  of  Alabama,  and 
actually  comprising  a  majority  of  the  members 
legally  elected,  constituted  the  lawful  legislature  of 
the  state,  though  it  did  not  assemble  in  the  Capitol, 
and  the  lieutenant-governor  did  not  preside  in  the 
Senate.  In  Kansas  it  was  decided,^  that  where  a 
majority  of  the  members  of  the  House  of  Representa- 
tives, each  holding  a  regular  certificate  of  member- 
ship, meets  at  the  customary  time  for  the  commence- 
ment of  a  session  in  the  hall  of  the  House  at  the 
Capitol,  and  perfects  an  organization  as  the  House  of 
Representatives,  such  a  body  is  duly  organized  al- 
though the  governor  or  the  Senate  or  both  refuse  to 
recognize  it.  Nor  is  its  power  destroyed  by  the  organ- 
ization in  the  same  room  of  another  pretended  House 
of  Representatives  having  less  than  a  constitutional 
quorum,  although  this  second  body  is  recognized  by 

^Forty-third  Congress,  1st  Session,  Ept.  291. 

2  Ex  parte  Screws,  49  Ala.,  57. 

3  In  re  Gunn,  50  Kans.,  155. 

218 


LEGISLATIVE  APPORTIONMENTS 

the  governor  and  the  Senate  as  the  de  facto  House  of 
Representatives.^ 

An  extreme  case  of  the  use  for  political  purposes  of 
the  power  over  contested  elections  was  made  by  the 
two  houses  of  the  Colorado  legislature  in  1903.  The 
Republicans  in  the  House,  alleging  election  frauds, 
unseated  just  enough  Democrats  to  assure  a  Repub- 
lican majority  on  joint  ballot  in  the  election  of  a 
United  States  senator.  Before  the  election  could  take 
place,  the  Democratic  majority  in  the  Senate  by  a  like 
procedure  regained  control  of  the  joint  session.  The 
Republican  lieutenant-governor  attempted  to  recog- 
nize the  Republican  minority  as  the  Senate.  He  ap- 
pealed to  the  governor,  a  man  of  the  same  party,  for 
troops,  but  was  refused.  The  Democrats  of  both 
houses  then  assembled  in  joint  session,  in  all  a  bare 
majority  of  the  legislature,  and  reelected  Senator 
TeUer.  This  incident  shows  the  extreme  danger  that 
may  occur  when  the  two  houses  are  of  different  polit- 
ical complexion,  and  when  the  margin  is  so  small  that 
the  unseating  of  a  few  members  of  either  house  will 
have  a  decisive  influence  in  the  senatorial  election. 
A  similar  controversy  was  threatened  in  West  Virginia 
in  1899,  when  there  was  a  Republican  Senate  and  a 
Democratic  House. 

*  In  this  case  the  Court  said :  '  *  The  House  of  Representatives 
is  not  the  final  judge  of  its  own  powers  and  privileges  in 
cases  in  which  the  rights  and  liberties  of  the  subject  are  con- 
cerned; but  the  legality  of  its  action  may  be  examined  and 
determined  by  this  Court.  The  House  is  not  the  legislature 
but  only  a  part  of  it,  and  is  therefore  subject  in  its  action  to 
the  laws,  in  common  with  all  other  bodies,  officers,  and  tri- 
bunals within  the  state. ' ' 

'  219 


AMERICAN  LEGISLATURES 


Aside  from  determining  the  qualifications  and  elec- 
tion of  their  own  members,  the  legislatures  in  many- 
states  have  the  right  to  try  contested  elections  for 
various  state  offices.^  In  California,  Pennsylvania, 
and  Delaware,  such  contests  are  decided  by  a  com- 
mittee of  both  houses.  In  some  states  the  legislature 
constitutes  in  effect  the  supreme  canvassing  board  for 
aU  state  elections.  An  extreme  use  of  the  power  of 
the  legislature  over  state  elections  occurred  in  Colo- 
rado in  1905.  On  the  face  of  the  returns  the  Demo- 
cratic candidate  for  governor  had  been  elected;  but 
the  legislature  threw  out  enough  votes  to  elect  the 
Republican  candidate,  Peabody;  and  was  sustained 
therein  by  the  courts  which  sent  a  number  of  Demo- 
cratic politicians  to  prison  for  election  frauds.  A 
compromise  was,  moreover,  made  with  Peabody,  ac- 
cording to  which  he  was  to  resign  his  office  on  being 
declared  elected,  and  to  permit  the  Republican  lieu- 
tenant-governor, a  more  popular  man,  who  had  been 
most  prominent  in  the  unseating  controversy,  to  suc- 
ceed him. 

In  Rhode  Island  before  1893,  as  originally  in  all 
New  England  states,  a  majority  vote  was  necessary 
to  elect  any  state  officer.  In  case  of  failure  to  elect, 
which  was  comparatively  frequent  under  this  system, 
the  respective  officers  were  elected  by  the  legislature 

*  Governor  and  executive  officers  in  New  Hampshire,  Massa- 
chusetts, Maine,  Vermont,  Khode  Island,  North  Carolina,  Ar- 
kansas, Texas,  Colorado,  Illinois,  Nebraska,  Georgia,  Alabama, 
Missouri,  Mississippi.  Governor  and  lieutenant-governor  in 
Virginia,  West  Virginia,  Indiana,  Iowa,  Kentucky,  Tennessee, 
Oregon,  South  Carolina,  Maryland. 

220 


LEGISLATIVE  APPORTIONMENTS 

in  joint  session.  The  Constitution  was,  however, 
amended  in  1893,  by  reducing  the  requirement  for 
election  to  a  plurality.^  In  Connecticut  a  similar  con- 
stitutional requirement,  which  has  also  recently  been 
abolished,  caused  a  serious  deadlock  in  1891-92.  In 
three  elections  in  succession  had  the  Democratic  can- 
dicates  for  state  offices  received  a  plurality,  though 
not  a  majority,  of  the  popular  vote;  and  each  time 
a  Republican  majority  of  the  legislature,  representing 
a  minority  of  the  people  of  Connecticut,  placed  the 
Republican  candidates  in  possession  of  the  contested 
offices.  The  close  election  of  1890  found  the  Demo- 
cratic candidates  for  lieutenant-governor,  secretary 
of  state,  and  controller  elected  by  a  majority,  the 
governor  by  a  decisive  plurality,  but  by  a  narrow 
majority,  dependent  for  existence  upon  the  omission 
of  100  Prohibition  votes.  The  legislature  consisted 
of  140  Republicans  representing  districts  whose  vote 
amounted  to  73,144,  and  134  Democrats,  whose  elec- 
torate was  over  twice  as  numerous,  comprising  195,840 
votes.  The  Senate  was  Democratic,  the  House  Repub- 
lican. The  Republicans  refused  to  ratify  any  of  the 
Democratic  elections  to  the  state  offices.  The  contest 
was  bitter  and  prolonged,  the  Republican  governor 
of  the  preceding  period,  Bulkeley,  holding  over.  Re- 
garding him  as  a  ''usurper,"  the  Democratic  Senate 
refused  to  pass  the  appropriation  bills.  The  Lower 
House  was  even  more  obstructive,  hoping  by  holding 
up  the  minor  state  offices  to  force  a  surrender  on  the 
governorship.  The  state  government  was  left  with- 
out funds,  but  the  holdover  controller,  on  the  ad- 
*  The  older  requirement  still  exists  in  New  Hampshire. 
•221 


AMERICAN  LEGISLATURES 


vice  of  bi-partisan  counsel,  obtained  money  and  ex- 
pended the  same  where  he  deemed  it  necessary,  under 
authority  derived  from  general  acts  of  a  period  long 
past.  The  struggle  over  the  contest  was  finally  taken 
to  the  courts,  where  it  was  ultimately  decided,  under 
the  constitution,  that  as  the  legislature  had  failed  to 
make  its  decision  within  two  days,  the  executive  of 
the  preceding  term  held  office  de  jure  as  well  as  de 
facto.  This  decision  was  reluctantly  received,  reliev- 
ing an  anomalous  condition  which  had  lasted  the 
better  part  of  two  years,  during  which  the  state  had 
been  unable  to  exercise  its  will  through  its  legislature 
or  its  properly  elected  officials.  The  succeeding  elec- 
tion returned  the  wronged  Democrats  to  power  with 
no  question  as  to  majority. 

In  addition  to  the  election  of  United  States  sena- 
tors,^ the  legislatures  in  some  states  are  by  constitu- 
tional provision  entrusted  with  the  power  of  electing 
certain  state  officers.  This  arrangement  was  used 
more  generally  in  the  earlier  decades  of  our  national 
life.  The  more  recent  tendency  has  been  toward 
popular  election  of  the  more  important  officials  of 
the  state.  The  following  table  will  give  a  summary 
view  of  the  direct  electoral  function  of  state  legisla- 
tures. The  following  officials  are  elected  by  the  legis- 
lature in  joint  session : 

*  The  important  subject  of  elections  to  the  United  States 
Senate,  which  on  account  of  the  limitations  of  space  cannot 
be  dealt  with  in  this  volume,  has  recently  been  taken  up  by 
George  H.  Haynes,  ''The  Election  of  Senators"  (1906).  See 
also  John  Haynes,  ''Popular  Election  of  United  States  Sena- 
tors," in  J.  H.  U.  Studies,  1893. 

222 


LEGISLATIVE  APPORTIONMENTS 

The  state  treasurer,  in  New  Jersey,  Maryland, 
Delaware,  New  Hampshire,  Maine,  Tennessee. 

The  secretary  of  state,  in  Vermont,  New  Hamp- 
shire, Maine,  Tennessee. 

The  controller,  or  the  auditor,  in  New  Jersey, 
Virginia,  Tennessee. 

The  attorney-general,  in  Maine;  the  solicitor-gen- 
eral, in  Georgia. 

The  commissary-general,  in  New  Hampshire. 

The  state  printer,  in  Kansas. 

The  governor's  council  of  seven  members,  in  Maine. 

Judges  of  various  courts  are  elected  by  the  legisla- 
ture in  the  following  states:  Vermont,  Rhode  Island, 
Virginia,  South  Carolina,  Georgia,  Louisiana,  New 
Jersey. 

In  the  exercise  of  the  electoral  function  the  legis- 
latures are  often  subservient  to  the  dictates  of  party 
expediency.  This  is  of  course  peculiarly  the  case  in 
the  United  States  senatorial  elections,  but  the  elec- 
tions of  state  ojBficers  are  also  occasionally  used  for 
the  specific  advantage  of  the  party  organization. 
Thus  for  instance  in  Maryland  the  recent  practice 
has  been  to  elect  as  state  treasurer,  the  chairman  of 
the  Democratic  State  Central  Committee.  He  is  thus 
enabled,  through  the  control  of  the  deposit  of  state 
funds,  to  assist  the  organization  materially. 

The  power  of  appointment  which  the  governor  has 
in  respect  to  some  inferior  officers  and  some  of  the 
state  commissions  is  in  many  commonwealths  made 
subject  to  confirmation  by  the  Senate.  It  has  been 
held  in  Michigan*  that  the  Senate  has  the  power  to 
'  Dust  V.  Oakmaii,  86  N.  W.,  151. 
.  223 


AMERICAN  LEGISLATURES 


withdraw  its  consent  to  an  appointment  to  office; 
since  in  concurring  in  such  appointment  it  exercises 
a  legislative  function,  revocable  under  ordinary  par- 
liamentary rules,  and  not  a  quasi-executive  duty,  in- 
capable of  revocation.  It  must,  however,  be  remarked 
that  courts  have  usually  held  the  exercise  of  the  ap- 
pointive power  to  be  an  executive  function.  Thus  it 
has  been  decided  in  diametrical  opposition  to  the 
above  case,  that  it  is  not  necessary,  in  a  call  for  an 
extra  session  of  the  legislature,  to  mention  the  con- 
firmation of  appointments  to  be  made,  because  the 
limitation  upon  extra  sessions  applies  only  to  acts  of 
legislation.^ 

The  question  as  to  the  nature  of  the  appointing 
power  and  as  to  the  proper  location  of  its  exercise 
has  received  considerable  attention  on  the  part  of  the 
courts.  Thus  it  has  been  decided  that  the  exercise 
of  the  appointing  power  by  Congress  is  precluded  by 
the  fact  that  the  Constitution  vests  it  in  the  Executive 
part  of  the  Government.^  The  Supreme  Courts  of 
Indiana  and  of  Illinois  have  been  especially  strict  in 
their  adherence  to  the  principle  of  the  separation  of 
the  three  departments.  The  constitutions  of  these 
states  distinctly  provide  that  no  officer  shall  exercise 
the  functions  of  any  other  department  than  that  to 
which  he  belongs.  The  Indiana  Court  has  repeatedly 
held  that  a  legislature  in  prescribing  by  law  how 
appointments  are  to  be  made  cannot  vest  in  itself 
the  election  of  a  state  officer,  nor  can  it  make  appoint- 

^  People  V.  Blanding,  63  Cal.,  333. 

2  Wood  V.  United  States,  15  Court  of  Claims,  151. 


224 


LEGISLATIVE  APPORTIONMENTS 

ments  directly.^  Nevertheless  this  Court  also  decided 
that  as  the  legislature  had  frequently  and  uniformly 
assumed  control  over  the  appointment  of  officers  of 
the  state  charitable  institutions— a  control  which  had 
been  acquiesced  in  by  all  departments  of  the  govern- 
ment—the legislative  appointment  of  a  trustee  of 
such  an  institution  would  be  held  valid.^  In  Kentucky 
the  legislature  in  1898  attempted  to  secure  control  of 
the  entire  electoral  machinery  by  creating  a  State 
Board  of  Election  Commissioners,  appointed  by  itself. 
The  Supreme  Court  has,  however,  declared  this  act 
unconstitutional  on  the  ground  that  it  delegated  exec- 
utive duties  to  the  legislature,^  although  it  had  pre- 
viously sustained  the  act  against  the  contention  that 
the  exercise  of  the  appointive  function  by  the  legis- 
lature impaired  its  validity. 

The  constitution  of  Ohio  provides  that  **no  ap- 
pointing power  shall  be  exercised  by  the  General  As- 
sembly, except  as  prescribed  in  this  constitution  and 
in  the  election  of  United  States  senators. ' '  The  prac- 
tice had  grown  up  among  members  of  the  Ohio  legis- 
lature to  barter  votes  for  offices  in  exchange  for  votes 
for  laws.  To  remedy  this,  the  Constitutional  Conven- 
tion of  1851  was  called.  In  this  convention  the  pur- 
pose of  the  clause  above  was  stated  as  being  **that  no 
appointing  power— not  the  least  vestige— should  be 
left  to  the   General  Assembly.''     Among  the  most 

^  State  V.  Denny,  118  Ind.,  382.  State  v.  PeeUe,  121  Ind., 
495.  See  also,  for  a  similar  principle,  Taylor  v.  Stephenson, 
2  Idaho,  166,  and  Rathbone  v,  Wirth,  150  N.  Y.,  459. 

2Hovey  v.  State,  119  Ind.,  386. 

3  Pratt  V.  Breckinridge,  65  S.  W.,  136. 

15  '225 


AMERICAN  LEGISLATURES 


prominent  reasons  urged  and  advocated  for  the  adop- 
tion of  tlie  new  constitution  was  the  forbidding  of 
the  legislative  power  of  appointment.  In  April,  1858, 
the  legislature  passed  a  state  house  and  a  peni- 
tentiary act  which  provided  *Hhat  there  shall  be 
appointed  by  William  Kennon,  Asahel  Medbury  and 
William  B.  Caldwell,  or  a  majority  of  them,  three 
directors  of  the  Ohio  penitentiary,"  etc.  The  state 
house  act  contained  a  similar  provision.  In  State  v. 
Kennon  (7  Ohio  St.,  546),  the  Supreme  Court  held 
these  acts  to  be  legislative  evasions  and  unconstitu- 
tional, for  the  power  to  direct  the  manner  of  appoint- 
ment did  not  include  the  power  of  naming  an  appoint- 
ing board  in  defiance  of  the  constitutional  provision. 
In  jurisdictions  where  this  limitation  is  placed  upon 
the  legislative  power,  it  has,  however,  been  held  that 
the  legislature  may  confer  additional  duties  and 
functions  upon  officers  already  chosen.  Thus  it  may 
pass  an  act  providing  that  the  commissioners  of  high- 
ways in  a  town  shall  also  be  drainage  commissioners,^ 
or  that  the  chief  of  engineers  in  the  United  States 
Army  and  the  engineering  commissioner  of  the  Dis- 
trict of  Columbia  shall  be  members  of  a  Park  Com- 
mission in  the  District.^ 

In  a  number  of  states  it  has  been  held  that  the 
power  of  appointment  to  office  is  not  exclusively  an 
executive  function,  but,  as  far  as  it  is  not  regulated 
by  express  provisions  of  the  constitution,  it  may  be 
controlled  by  statutory  law  or  even  directly  exercised 


^  Kilgour  V.  Drainage  Commissioners,  111  HI.,  342. 
2  Shoemaker    v.   United   States,    142   U.   S.,   282.     See  also 
Walker  v.  Cincinnati,  21  Ohio  S.,  14. 

226 


LEGISLATIVE  APPORTIONMENTS 

by  the  legislature  itself.^  In  Maryland  it  was  held 
that  the  appointment  of  city  police  is  not  exclusively 
an  executive  act  which  the  legislature  cannot  per- 
form 2;  and  in  Kentucky,  the  election  law  of  1898 
providing  for  appointment  by  the  legislature  of  the 
State  Board  of  Election  Commissioners  is  not  uncon- 
stitutional for  that  particular  reason.^ 

*  Travellers*  Insurance  Company  v.  Oswego,  59  Fed.  E.,  58 
(Kansas).  People  v.  Freeman,  80  Cal.,  233.  Commissioner  v. 
George,  20  Ky.  Law  Eeporter,  938. 

2  Baltimore  v.  State,  50  Md.,  376. 

apumell  V.  Mann,  48  S.  W.,  407.    See  above,  p.  225. 


227 


CHAPTER  VIII 

THE  PERVERSION  OF  LEGISLATIVE  ACTION 

In  American  practical  politics,  constitutional  re- 
quirements are  often  treated  with  scant  courtesy;  in- 
deed, the  institutions  and  principles  of  the  public 
law  have  in  some  instances  been  effectually  super- 
seded by  an  extra-constitutional  system  of  political 
influences  based  on  economic  or  financial  power.  Eco- 
nomic interests  as  such  are  not  accorded  representa- 
tion in  our  political  system,  which  is  founded  theoret- 
ically on  the  representation  of  numbers,  for  the  ascer- 
taining of  the  general  will  and  the  consummation  of 
the  common  welfare.  So  great  is  the  prejudice  against 
persons  connected  with  important  economic  enter- 
prises that,  no  matter  how  excellent  their  qualities 
of  character  may  be,  they  are  considered  unpromising 
candidates  for  public  office  on  a  party  ticket.  But 
by  a  curious  inversion  these  very  interests  which  are 
in  theory  excluded  from  a  direct  influence  upon  our 
democratic  institutions,  have  in  practice  in  many 
commonwealths  acquired  an  absolute  control  of  polit- 
ical action.  Indeed,  by  force  of  circumstances  there 
has  been  evolved  a  system  of  representation  of  inter- 
ests, in  which  unfortunately  the  general  interest  of 

228 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

the  state  does  not  always  hold  its  own.  For  the 
interests  represented  are  special,  being  composed  of 
powerful  economic  combinations  which  use  the  politi- 
cal machinery  of  republican  institutions  for  the  pur- 
pose of  procuring  exemptions  and  privileges  which 
serve  still  further  to  augment  and  to  entrench  their 
preponderance.  Thus  it  has  come  about  that  the  very 
institutions  which  are  founded  on  the  idea  of  a  com- 
mon welfare,  developed  and  protected  by  the  action 
of  the  general  will,  have  in  many  cases  been  made  the 
instruments  for  the  creation 'of  a  regime  of  special 
privilege.  This  is  due  to  the  simple  fact  that  while 
people  in  general  are  busily  pursuing  their  own  pri- 
vate affairs,  the  public  interest  is  allowed  to  fall  into 
the  hands  of  men  who  see  in  it  simply  the  source  of 
private  advantage  and  who  are  ready  to  permit  their 
political  action  to  be  controlled  by  whatever  interest 
or  group  is  most  liberal  in  its  treatment  of  the  prac- 
tical politician. 

When  our  government  was  founded  the  statesmen 
of  the  day  were  animated  by  the  living  traditions  of 
English  politics.  These  traditions  indeed  did  not 
exclude  the  practice  of  corruption— we  need  only  re- 
member what  eighteenth  century  Whigism  stood  for 
in  practical  politics— but  there  was  after  all  among 
these  men  a  strong  sense  of  ''commonwealth,"  of 
the  public  interest,  and  an  honest  ambition  to  do  a 
substantial  service  to  their  state  and  country.  With 
the  incoming  of  the  democratic  regime,  there  was 
added  to  these  traditions  the  general  welfare  theory 
of  Rousseau  and  of  Bentham  as  interpreted  by 
Thomas  Jefferson.  For  a  time  this  idea  had  actual 
'   229 


AMERICAN  LEGISLATURES 


force  and  inspired  statesmen  to  unselfish  and  public- 
spirited  action.  Nor  were  the  interests  of  the  country 
at  that  time  so  diversified  as  to  make  it  difficult  to 
remain  within  the  Constitution  and  within  the  general 
welfare  theory  in  adjusting  the  claims  of  the  various 
component  parts  of  the  state. 

But  as  the  economic  development  of  the  country 
advanced  and  the  unprecedented  opportunities  for 
gaining  economic  power  were  recognized,  the  men  of 
high  ability  were  more  attracted  to  the  fields  of 
industrial  enterprise,  and  human  material  of  a  rela- 
tively inferior  grade  began  to  people  the  political  posi- 
tions, especially  in  the  state  legislatures.  The  im- 
petus given  to  these  economic  tendencies  by  the  Civil 
War  led  to  an  era  of  unrestrained  individualism.  In 
the  intense  struggle  for  opportunities  and  privileges 
men  were  animated,  as  in  that  other  great  individual- 
istic age,  the  Renaissance,  by  the  sole  consideration 
of  personal  success.  Public  rights  and  general  wel- 
fare were  ignored  and  often  practically  treated  as  non- 
existent. 

The  opportunities  which  our  political  system  of- 
fered for  the  rapid  extension  and  solid  entrenchment 
of  economic  power  were  soon  perceived  by  the  shrewd 
leaders  in  this  struggle.  These  men  noticed  that  while 
every  one  was  anxious  to  acquire  wealth,  nobody  paid 
any  attention  to  the  institutions  through  which  un- 
limited economic  power  could  be  acquired— the  state 
legislatures.  Whoever  should  interest  himself  in  these 
bodies  and  pay  his  respects  to  the  neglected  statesmen 
of  the  commonwealths,  they  saw,  would  be  amply  re- 
warded.    The  great  railways,  having  most  to  gain 

230 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

were  the  first  to  perceive  the  opportunity.  In  these 
earlier  days  things  were  often  managed  with  little 
adroitness.  There  was  much  indiscriminate  and 
broadcast  bribery ;  to  buy  men  for  a  moderate  amount 
per  vote  was  the  acme  of  ambition  to  the  successful 
lobbyist.  Such  unskilful  and  clumsy  methods  of  cor- 
ruption were  easily  discovered  and,  though  they  served 
their  purposes  over  and  over  again,  at  times  brought 
discomfiture  to  their  originators.  In  Pennsylvania, 
disgust  with  wholesale  corruption  led  to  the  calling 
of  a  Constitutional  Convention  in  1872,  which  gave 
the  whole  matter  of  legislative  organization  and  pro- 
cedure the  most  careful  consideration  and  framed  ex- 
cellent constitutional  enactments.  Unfortunately 
many  of  the  lattep  were  afterwards  politely  ignored 
or  less  considerately  brushed  aside  by  the  all-efficient 
** unanimous  consent"  under  machine  rule.  The  in- 
vestigation of  the  scandal  of  the  Milwaukee  and  La 
Crosse  Railway  Company  in  Wisconsin  (1858),  showed 
that  about  $900,000  worth  of  bonds  had  been  dis- 
tributed among  legislators  and  prominent  politicians 
in  the  state.  Conditions  like  these  have  probably  ob- 
tained in  all  the  states  at  some  time  or  other.  They 
still  exist  in  some  localities,  but  in  most  of  the  states 
the  special  interests  have  developed  a  far  more  effi- 
cient system  of  dealing  with  legislatures  than  hap- 
hazard corruption. 

As  a  natural  outcome  of  the  competition  between 
powerful  corporations  for  legislative  favor,  there  was 
developed  gradually  a  hierarchy  of  interests,  or  some 
specially  powerful  interest  became  controlling  and 
made  the  other  seekers  for  privileges  its  vassals.    As 

231 


AMERICAN  LEGISLATURES 


tlie  railways,  on  account  of  the  extent  of  their  busi- 
ness and  their  quasi-public  character,  had  most  to  gain 
or  lose  through  legislative  action,  they  naturally  strove 
for  the  primacy  of  influence,  and  early  in  the  history 
of  corruption  in  many  commonwealths  made  good 
their  claim  to  a  controlling  position.  Though  nearly 
all  seem  to  have  been  willing  to  enter  the  race  for 
power,  the  most  flagrant  instances  of  wholesale  and 
systematic  corruption  are  found  among  those  corpora- 
tions, whose  plans  embraced  the  conquest  of  a  number 
of  commonwealths.  During  the  formative  period  when 
new  grants,  privileges,  and  exemptions  were  sought  by 
the  railways,  and  when  their  legal  status  still  largely 
remained  to  be  determined,  the  influence  of  this  par- 
ticular interest  became  so  pervading  that  we  may  in- 
deed speak  of  the  railway  period  in  our  legislative 
history.  When  in  certain  commonwealths  the  rail- 
ways had  secured  all  the  franchises,  exemptions,  and 
privileges  which  the  legislature  could  bestow  upon 
them,  and  when  they  had  given  a  form  to  these  ''inci- 
dents" which  could  be  relied  upon  as  fairly  perma- 
nent, the  railways  began  to  take  a  somewhat  less 
direct  interest  in  politics,  confining  their  activity 
principally  to  the  prevention  of  unfavorable  legis- 
lation. Indeed,  in  some  instances  they  felt  able  to 
dispense  with  the  finely  wrought  and  efficient  mechan- 
ism which  they  had  constructed ;  this  they  now  hired 
out  to  some  other  "interest"  which  had  not  as  yet 
sufficiently  fortified  its  position.  We  thus  enter  upon 
the  public  utility  or  public  service  period  of  legisla- 
tive corruption.  The  "trolley  crowd"  and  the  "gas 
combine"    became     potent     factors     in     legislative 

232 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

life.  As  they  desired  to  use  the  public  highways, 
their  need  for  political  support  was  especially  strong. 
Interurban  electric  railways  had  to  get  the  whip- 
hand  over  refractory  town  councils,  and  corporations 
of  this  kind  needed  long  term  franchises  to  make 
their  stock  and  bonds  readily  salable.  The  manu- 
facture of  electricity  being  a  connecting  link  between 
** trolley"  and  ''light,"  they  often  worked  hand  in 
hand,  or  formed  one  great  ''public  service  corpora- 
tion." The  incidental  irony  of  this  name,  it  would 
seem,  is  fully  appreciated  by  the  men  who  use  it.  An 
understanding  of  the  later  developments  will  make  it 
clear  that  it  is  impossible  to  dissociate  municipal 
administration  from  the  affairs  in  the  state  legisla- 
ture, until  a  complete  system  of  municipal  home  rule 
has  been  developed.  Municipal  government  thus  ac- 
"quires  an  importance  far  transcending  the  limits  of 
local  affairs ;  through  the  uses  to  which  it  may  be  put 
by  powerful  combinations,  it  becomes  a  matter  of 
central  moment  in  American  public  life. 
/The  age  of  competition  is  everywhere  giving  way 
to  an  era  of  solidarity.  Originally  the  lobby  con- 
sisted of  independent  adventurers  struggling  to  ob- 
tain for  their  clients  legislative  favors.  Later,  groups 
were  formed  corresponding  to  the  various  interests 
represented,  which  were  still  vigorously  competing 
with  each  other.  A  higher  form  of  solidarity  is 
reached  when  one  interest  has  obtained  the  unques- 
tioned ascendancy  so  that  it  enjoys  the  power  to 
restrict  other  groups  within  a  limited  sphere,  and  to 
harmonize  their  conflicting  interests  by  imposing  a 
spirit  of  compromise  upon  them.     Of  course  no  in- 

233 


AMERICAN  LEGISLATURES 


terest,  however  powerful,  needs  all  the  attention  of 
the  legislature  for  its  own  affairs.  The  idea,  there- 
fore, occurred  to  the  representatives  of  the  leading 
interest  that  as  they  required  only  a  portion  of  the 
legislative  energy  for  their  own  purposes,  it  might 
be  profitable  and  advantageous  to  dispose  of  the  by- 
product of  legislation  to  such  lesser  interests  as  were 
able  to  return  a  proper  consideration.  The  claims  of 
lesser  men  could  thus  be  dealt  with  upon  the  basis 
of  commercial  justice.  This  tendency  toward  mutual 
adjustment  has  constantly  grown  and  the  lobby  has 
been  organized  in  many  instances  as  a  complete  hier- 
archy. The  controlling  interest,  whether  railway, 
trolley,  or  gas,  is  willing  to  allow  a  fair  share  in 
legislative  influence  to  be  enjoyed  by  others.  This 
is  commercial  government  in  its  perfection,  where 
in  the  words  of  a  ''square  boss,*'  "Any  business  man 
can  get  what  he  needs  at  a  reasonable  price." 

As  a  result  of  the  developments  briefly  reviewed, 
direct  money  bribery  has  perhaps  become  less  com- 
mon than  it  was  in  the  simpler  days.  When  the  great 
interests  own  the  legislature  or  a  controlling  part  of 
it,  it  is  of  course  not  necessary  for  them  to  buy  sup- 
port on  individual  measures  by  pecuniary  bribes.^ 
It  is  well  known  that  the  control  exercised  is  often 
an  indirect  one,  reaching  the  individual  legislator 
through  some  person  who  may  be  said  to  be  his 
political  owner.     Cases  are,  in  fact,  not  infrequent 

^The  former  is  from  the  point  of  view  of  the  "interests^' 
altogether  the  most  satisfactory  method,  for,  as  an  elder 
^'statesman"  sadly  (and  blasphemously)  remarked,  the  men 
you  have  bought  ' '  won 't  stay  bought. ' ' 

234 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

where  legislators  seem  unaware  of  the  fact  that  they 
are  owned,  and  their  protestations  of  public  virtue 
must  have  a  peculiarly  exhilarating  sound  to  the 
ears  of  the  actual  proprietors.  The  lobby  organized 
under  the  most  advanced  system  often  becomes  a 
third  chamber,  a  senate,  or  an  advisory  council  in 
states  where  an  autocratic  boss  exists.  The  repre- 
sentation of  interests,  ruled  out  by  our  constitutional 
theory,  has  become  a  fact  in  many  state  legislatures. 
Nor  are  the  lobbyists  ordinarily  men  of  mean  ability 
or  criminal  character.  They  are  indeed  often  of  con- 
siderable mental  capacity  and  they  generally  have 
far  more  experience  of  legislative  action  than  the 
average  member.  The  boss  and  lobby  work  in  com- 
mon with  the  group  within  the  legislative  body  which 
is  favorable  to  the  powerful  interests  thus  repre- 
sented. It  is  of  course  not  necessary  for  these  inter- 
ests to  own  even  a  majority  of  the  legislators;  a 
smaller  group,  comprising  members  of  both  parties, 
well  organized  and  backed  by  the  ability  and  influ- 
ence of  the  lobby,  is  in  ordinary  times  sufficient  to 
maintain  a  safe  control  of  legislative  action. 
/Under  this  system  great  powers  have  to  be  placed 
in  the  hands  of  some  trusted  person;  moneys  have 
to  be  received  and  expended,  although  not  in  the 
indiscriminate  fashion  formerly  employed;  men  have 
to  be  wheedled  or  threatened;  the  execution  of  the 
laws  has  to  be  delayed  and  pardons  secured;  persons 
of  all  sorts  have  to  be  induced  to  work  in  harmony 
and  with  expedition;  and  all  these  activities  have  to 
be  carried  on  without  publicity,  without  open  con- 
sultations. A  great  amount  of  trust  thus  has  to  be 
'235 


AMERICAN  LEGISLATURES 


put  in  certain  managing  individuals.  Great  adroit- 
ness and  tact,  cool  calculation,  quick  decision,  ability 
to  coerce  men  without  unduly  hurting  their  feelings— 
all  these  are  needed  for  successful  leadership.  Tri- 
umvirates are  often  formed  where  a  supreme  genius 
has  not  appeared  or  where  he  has  left  the  stage.  But 
the  universal  tendency  is  toward  greater  concentration, 
and  sooner  or  later  there  is  evolved  the  boss,  the  fruit 
and  flower  of  commercial  politics  in  America.  He 
represents  the  main  interest  but  also  holds  the  bal- 
ance between  the  minor  tributary  groups.  The 
secrecy  necessary  for  his  work  gives  him  great  power. 
He  alone  holds  all  the  threads  that  bind  the  system 
together.  In  his  person  are  united  the  confidence  of 
the  favored  interests  and  the  hopes  of  his  political 
lieutenants.  He  commands  the  source  of  supplies. 
He  has  mastered  the  study  of  political  psychology 
and  knows  by  intimate  experience  the  personal  char- 
acter of  the  prominent  politicians  in  the  state.  Most 
of  them  are  dependent  upon  him  for  future  favors  or 
are  bound  to  him  through  past  indiscretions.  The 
character  of  the  system  demands  an  absolute  ruler. 
For  this  reason,  too,  the  power  of  the  boss  is  con- 
tinuous; it  is  rarely  overthrown  from  within  and 
only  a  great  public  upheaval  can  affect  it.  Bosses 
maintain  themselves  in  the  saddle  and  enjoy  a 
long  lease  of  power,  because  of  their  direct  and  con- 
fidential relations  with  the  controlling  interests ;  their 
inborn  secretiveness  leads  them  to  keep  their  own 
counsel,  and  not  to  allow  any  other  person  a  com- 
plete insight  into  all  the  intricacies  of  the  system. 
They  grow  stronger  as  the  years  pass  and  no  indis- 

236 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

cretion  or  even  crime  is  able  to  shake  their  authority 
while  they  keep  in  their  hands  the  main  threads  con- 
necting influence  with  its  obedient  tools.  The  abler 
men  of  this  type  are  filled  with  a  keen  sense  of  the 
irony  of  their  position.  They  have  the  clear  insight 
into  the  coarser  actualities  of  politics  that  character- 
ized Machiavelli.  The  political  exhorter  who  sways 
the  multitudes  from  the  stump  does  not  become  a  boss ; 
to  achieve  that  position  the  power  of  cool  analysis, 
of  impassive  control,  and  of  unflinching  execution,  are 
more  essential  than  any  gifts  of  popular  leaderships^/ 

We  are  thus  brought  face  to  face,  in  our  polifical 
life,  with  the  growth  of  a  compact  system  outside  of  ) 
the  constitution  and  the  public  law.  The  legal  forms 
are  given  at  most  an  empty  observance:  there  are 
nominating  conventions,  but  the  candidates  are  dic- 
tated; there  are  elections,  but  the  registry  and  the 
returns  are  fraudulent.  There  is  perhaps  at  present 
more  direct  bribery  at  elections  than  in  the  legisla- 
tures, especially  in  states  where  peculiar  conditions 
of  suffrage  exist,  particularly  in  Maryland,  Connecti- 
cut, and  Rhode  Island.  In  the  legislature  the  groups 
representing  the  industrial  system  have  the  power  of 
organization  on  their  side.  They  have  been  able 
again  and  again,  and  for  whole  sessions  at  a  time, 
to  turn  parliamentary  procedure  into  a  mere  formal- 
ity for  impressing  the  character  of  law  upon  the  dic- 
tates of  the  special  interests.  An  artiflcial  common 
consent  is  easily  created  by  which  all  constitutional 
limitations  upon  parliamentary  practice  can  be  sum- 
marily evaded.  The  real  power  in  such  cases  is 
usually  behind  the  throne.  We  hear  of  a  potent  boss 
'  237 


AMERICAN  LEGISLATURES 


dictating  amendments  from  behind  a  curtain  that 
shields  him  from  view,  but  enables  him  to  follow 
minutely  the  proceedings  of  the  legislature.  The  in- 
fluence of  party  affiliations  is  used  at  the  convenience 
of  the  controlling  power  to  whip  into  line  the  doubt- 
ful members  by  a  threat  of  the  charge  of  party  dis- 
loyalty. But  ordinarily  the  organization  is  non- 
partisan or  bi-partisan  in  its  character,  having  its 
representatives  on  both  sides  of  the  house.  In  this 
manner  its  power  ceases  to  be  conditional  upon  fairly 
unanimous  party  support,  and  it  can  afford  to  ignore  a 
large  minority  of  independent  spirited  members  of 
the  ruling  party. 

The  same  disregard  for  constitutional  require- 
ments and  for  the  demands  of  public  policy  which 
manifests  itself  in  the  method  of  legislative  short- 
cuts, extends  to  the  substance  of  legislation.  Any 
institutional  arrangement,  however  well  established, 
will  be  capriciously  and  tyrannically  modified  when- 
ever the  temporary  needs  of  the  organization  demand 
it.  This  ''ripping"  of  public  institutions  is  one  of 
the  most  striking  characteristics  of  the  commercial 
system  of  politics.^  Whether  the  governor  alone  or  in 
conjunction  with  the  Senate  shall  exercise  the  power 
of  appointment,  whether  the  veto  power  is  to  be 
accorded  to  mayors,  whether  the  aldermen  or  the 
legislature  shall  control  franchises,  whether  the  police 
is  to  be  under  the  municipal  governments  or  under  a 
state  board;  all  these  questions  are  settled  solely  ac- 
cording to  the  needs  of  the  organization  in  fastening 
its  control  alike  upon  local  and  state  governments. 

^  See  below,  p.  266. 

238 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

Should  it  be  unable  to  fill  the  position  of  mayor  with 
its  nominee,  it  will  destroy  the  powers  of  that  posi- 
tion. Should  the  voters  of  a  particular  city  become 
refractory,  the  administration  of  municipal  func- 
tions will  be  transferred  to  a  state  board.  Indeed 
the  boss  and  the  controlling  interest,  like  the  king, 
can  do  no  wrong,  because  whenever  any  law  stands 
in  their  way  it  can  be  changed  by  them  to  suit  the 
present  purpose.  They  not  only  hold  the  actual 
power,  but,  should  their  position  be  threatened,  they 
can  shift  the  institutional  basis  of  authority  at  their 
will  as  the  exigency  of  the  moment  may  require. 

If  the  sanctity  and  permanence  of  law  receives  no 
consideration  in  the  mind  of  these  rulers,  no  more  is 
given  to  the  human  material  consumed  in  achieving 
their  purposes.  Their  servants  are  indeed  paid  liber- 
ally in  money  and  preferment,  but  they  are  reduced 
to  a  position  of  dependence  in  which  the  soul  is  burnt 
to  ashes.  The  cynicism  of  the  political  boss  and  his 
satellites  and  the  temptations  which  they  hold  out, 
are  the  greatest  corruptors  of  youth  in  our  age.  The 
young  graduate  beginning  his  professional  life  finds 
the  industrial  and  commercial  world  far  more  in- 
tricate than  he  had  anticipated.  His  knowledge 
seems  insignificant,  he  lacks  experience,  the  world 
seems  apathetic,  and  the  mastery  of  its  elaborate 
processes  and  methods  well  nigh  unobtainable.  When 
at  this  time  the  representative  of  a  controlling  in- 
terest, who  usually  has  a  good  eye  for  striking  promise 
of  ability,  approaches  the  young  lawyer,  retains  his 
services,  and  opens  up  the  way  to  preferment,  he  is 
working  with  a  great  advantage;  and  there  are  few 

2:^0 


AMERICAN  LEGISLATURES 


men  who  will  under  such  circumstances  have  fore- 
sight enough  to  fathom  what  will  ultimately  be  re- 
quired of  them  by  their  new  friends.  By  blocking 
the  road  of  legitimate  ambition,  the  men  that  have 
been  enlisted  are  then  gradually  forced  to  make 
themselves  the  passive  tools  of  their  employers.  The 
system  is  in  need  of  able  representatives  and  of 
mediocre  legislators.  It  will  therefore  do  its  best  to 
impede  the  advance  of  public-spirited  and  inde- 
pendent men  in  political  life.  It  is  not  surprising 
that  politics  does  not  in  general  offer  a  satisfying 
career.  Able  men  of  high  character  are  disgusted 
with  the  usual  demands  made  upon  politicians. 
While  youth  is  corrupted,  manhood  is  tyrannized; 
and  wherever  the  commercial  system  has  been  most 
successful,  property,  honor,  and  even  life  have  been 
rendered  unsafe.  We  do  not  here  refer  solely  to  the 
scandalous  viciousness  of  the  metropolitan  police,  but 
to  direct  and  implied  threats  against  the  life  and 
property  of  men  for  the  purpose  of  cowing  them  and 
making  them  entirely  dependent  upon  the  pleasure 
of  the  political  despot.^ 

The  organization  which  we  have  briefly  described 
in  its  methods  and  results  exists  in  various  degrees 
of  perfection.  Some  of  the  states  are  indeed  com- 
paratively free  from  it.    They  have  either  maintained 

^See  examples  brought  out  by  E.  Blankenbury  in  *' Masters 
and  Eulers  of  the  Freemen  of  Pennsylvania,*'  in  ''The 
Arena,"  1905;  a  moderate  and  responsible,  though  indignant, 
account  of  Pennsylvania's  politics.  Also  Lincoln  Steffens's 
''The  Struggle  for  Self -Government, "  1906.  C.  P.  Connolly, 
' '  The  Story  of  Montana  "  in  "  McClure  's, ' '  1906. 

240 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

a  fairly  honest  character  in  their  political  life,  or 
they  still  live  in  the  Arcadian  simplicity  of  the  first 
period  of  indiscriminate  corruption.  In  some  of  the 
commonwealths,  on  the  other  hand,  in  which  the 
organization  has  been  perfected,  it  is  from  time  to 
time  threatened  by  great  popular  movements  in  oppo- 
sition to  it  and  forced  to  suspend  operations  for  a 
time.  But  in  the  words  of  a  once  famous  railway 
and  insurance  senator,  **Such  storms  blow  over,'*  at 
ordinary  times,  and  the  political  boss,  emerging  from 
his  cyclone  cellar,  soon  succeeds  in  **  repairing  his 
fences."  So  indeed  even  the  present  storm  of  popu- 
lar indignation  also  may  blow  over,  unless  the  real 
nature  of  the  situation  is  clearly  perceived  by  the 
people.  They  must  learn  to  understand  that  the 
combat  is  not  so  much  against  individual  wickedness 
and  corruption  as  against  a  system  of  extra-legal  and 
extra-constitutional  despotism,  which  rules  with  the 
absolutism  and  narrowness  of  aim  and  sympathy 
ordinarily  attributed  to  Czardom. 

When  a  legislative  group  is  organized  under  the 
supervision  of  a  boss  for  the  purpose  of  carrying  on 
the  government  in  accordance  with  the  needs  of  special 
interests,  the  party  machinery  is  made  use  of  as  much 
as  possible  for  the  purposes  of  whipping  into  line 
doubtful  or  independent  members.  The  group  must, 
indeed,  control  a  majority  of  the  party  in  power  so  as 
to  be  able  to  nominate  the  legislative  officers  and  com- 
mittees. But  the  organization  leaders  can  afford  to 
ignore  the  minority  members  in  the  governing  party 
because  they  will  ordinarily  be  able  to  draw  on  the 
party  of  opposition  for  sufficient  support  to  carry 

16  •  241 


AMERICAN  LEGISLATURES 


their  measures.  This  in  fact  is  the  favorite  arrange- 
ment. Parties  are  after  all  public  institutions  whose 
work  has  to  be  carried  on  more  or  less  in  the  open. 
Were  the  organization  to  rely  solely  upon  the  domi- 
nant party  the  independent  members  would  constantly 
be  a  thorn  in  the  flesh.  The  party  in  its  character 
as  a  public  body  would  be  loath  to  assume  the  re- 
sponsibility for  the  legislative  work  demanded  by 
the  system.  The  control  of  a  strong  group  within  the 
dominant  party  will  ordinarily  be  a  sufficient  basis 
for  the  power  of  the  organization,  as  there  will 
usually  be  a  corresponding  group  in  the  minority 
party,  who  will  be  ready  to  associate  themselves  with 
the  system  in  return  for  a  share  of  legislative  influ- 
ence. The  most  efficient  legislative  machines  have 
therefore  always  been  more  or  less  bi-partisan  in  char- 
acter, and  have  used  the  name  of  the  dominant  party 
only  to  blind  the  public  as  to  their  real  purposes.  In 
the  evil  days  of  the  Illinois  legislature  from  1897  to 
1903,  the  Senate  combine  consisted  of  a  strong  group 
of  experienced  Republican  senators  closely  affiliated 
with  a  lesser  group  among  the  Democrats.  Only  one 
Republican  Senate  caucus  was  held  during  the  session 
of  1903,  that  on  the  convict  labor  bill,  upon  which 
disagreement  was  a  foregone  conclusion.  All  the 
business  of  the  Senate  was  managed  by  a  steering 
committee  consisting  of  five  organization  senators.  In 
the  arrangement  of  committees  far  more  positions 
were  given  to  the  Democratic  senators  than  to  the 
members  of  the  Republican  minority,  although  the 
latter  were  equally  as  numerous  as  the  Democrats. 
\  For  the  management  of  the  House,  the  organiza- 
242  . 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

tion  relies  primarily  upon  the  power  of  the  speaker. 
He  appoints  and  controls  the  committees,  and  through 
the  steering  committee  or  the  Committee  on  Rules 
often  exercises  a  complete  mastery  over  the  course  of 
business.  His  power  is  ordinarily  proportionate  to 
the  influence  of  the  organization,  and  in  extreme 
cases,  he  may  be  confident  enough  to  ** gavel  through'' 
the  organization  bills  by  using  the  fiction  of  common 
consent.  The  system  favors  the  democratic  principle 
of  rotation  in  office  for  the  Lower  House.  If  the 
members  are  new  and  inexperienced  and  of  moderate 
ability  the  task  of  organizing  them  into  groups  favor- 
able to  the  associated  interests  will  be  comparatively 
easy.  The  effort  is  made  to  draw  the  holdover  or 
re-elected  members  into  the  organization  by  offering 
great  inducements,  and  thus  to  secure  a  monopoly  of 
all  legislative  experience  within  the  House.  There 
has  been  quite  a  remarkable  shortening  of  the  average 
term  of  service  in  some  commonwealths.  In  .Con- 
necticut, at  the  beginning  of  the  nineteenth  century 
more  than  one-half  the  members  were  ordinarily  re- 
elected, now,  the  return  of  an  old  member  has  be- 
come an  exception.  In  1900,  only  43  among  the  255 
members  were  men  who  had  served  in  the  House 
before. 

The  creation  of  a  bi-partisan  combine  is  facilitated 
in  states  where  one  of  the  parties  is  in  a  constant 
and  almost  hopeless  minority.  The  safest  chance  its 
members  have  for  exercising  legislative  influence  is 
through  an  alliance  with  the  organization  forces 
within  the  dominant  party.  If  the  dominant  party 
were  to  act  as  a  responsible  public  body,  it  would  as 
'243 


AMERICAN  LEGISLATURES 


much  as  possible  ignore  the  party  in  opposition;  but 
as  the  really  controlling  force  is  a  bi-partisan  organ- 
ization of  commercial  government,  those  who  are  ig- 
nored are  the  independent  spirited  members  of  both 
parties— that  is,  all  who  do  not  effect  a  compromise 
with  the  governing  power.  The  Missouri  bi-partisan 
Senate  group,  as  it  existed  until  recently,  is  an  ex- 
ample of  the  worst  kind  of  this  type  of  organization. 
The  organization  in  Missouri  had  the  distinction  of 
combining  the  most  highly  developed  system  of  con- 
trol with  the  most  brazen  methods  of  wholesale  money 
corruption.  The  same  bi-partisanship  has  prevailed 
in  Pennsylvania.  The  Democratic  machine  in  that 
state  has,  in  fact,  often  been  a  mere  annex  to  the 
governing  organization.  The  character  of  the  mutual 
support  is  illustrated  by  the  election  of  magistrates 
in  1905.  The  law  gives  the  minority  a  certain  repre- 
sentation on  the  bench.  In  this  election  there  was 
reason  to  believe  that  the  Republican  opposition  would 
poll  enough  votes  to  elect  their  candidates  for  these 
minority  positions.  The  Republican  machine  there- 
upon lent  a  number  of  its  corrupt  voters  to  the  Demo- 
cratic managers,  thereby  enabling  them  to  elect  their 
nominees.  The  cumulative  system  of  voting  has 
proved  itself  exceedingly  favorable  to  such  manipula- 
tion. The  machine  of  the  dominant  party  will  invari- 
ably help  elect  the  representatives  of  the  opposition 
if  they  promise  subserviency  to  its  main  purposes. 
The  state  of  New  Jersey  offers  many  striking  illus- 
trations of  bi-partisan  rule.  The  Republican  gerry- 
mander of  1881,  resulting  in  the  election  of  a  Repub- 
lican legislature  while  the  Democratic  majority  of  the 

244 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

people  elected  the  governor,  laid  the  foundation  for 
this  system.  In  Rhode  Island  a  Democratic  politician 
was  for  a  time  allowed  to  act  as  leader  of  the  Re- 
publican Senate.  Of  course  the  organization  leaders 
are  loud  in  their  protestations  of  party  loyalty,  but 
they  are  strangers  to  any  idea  of  consistent  party 
action  and  of  party  responsibility  for  the  general 
welfare.  Their  power  is,  in  fact,  conditioned  upon 
making  such  action  impossible  and  carrying  on  ordi- 
nary legislation  by  deals  between  members  of  both 
parties. 

This  bi-partisan  character  of  machine  methods  is 
prominent  also  in  municipal  affairs.  Where  big 
cities  are  tangled  up  with  a  county  organization,  it  is 
a  favorite  arrangement  to  allow  one  party  to  control 
the  county,  the  other  the  city.  Bi-partisan  boards 
like  the  old  New  York  Police  Board  are  dear  to  the 
politician's  heart,  because  under  them  government 
through  deals  is  a  natural  result.  In  some  states 
there  exist  peculiar  organizations  due  to  local  condi- 
tions. The  Connecticut  legislature  has  its  Farmers' 
Association,  which  meets  practically  every  morning 
during  the  session  and  debates  the  questions  at  issue, 
and  the  decisions  there  arrived  at  are  registered  by 
the  General  Assembly.  The  Empire  State  embraces 
within  its  realm  so  many  powerful  interests,  and  the 
parties  within  it  are  so  evenly  balanced,  that  there 
has  not  been  a  constant  dictatorship  by  one  bi-partisan 
boss,  but  rather  the  bosses  of  the  two  great  parties 
have  governed  the  state  by  making  mutual  arrange- 
ments. The  New  York  Senate  has,  however,  had 
organized  groups  as  bold  and  corrupt  as  any,  although 
*  245 


AMERICAN  LEGISLATURES 


their  power  is  not  always  absolute;  the  activities  of 
the  "Black  Horse  Cavalry"  in  corrupt  legislation 
are  sufficiently  notorious.  The  bosses  of  New  York, 
on  account  of  the  nearly  equal  balance  of  parties  in 
that  state,  are  in  a  position  to  use  the  cry  of  party 
loyalty  to  great  advantage  for  their  own  purposes. 
They  therefore  make  more  use  of  it  than  is  ordinarily 
the  practice  of  the  ''organization.''  When  the  inti- 
mates of  a  boss  pass  the  word  that  a  bill  is  a  party 
measure,  obedience  is  ordinarily  quite  general,  al- 
though no  one  has  any  knowledge  of  what  forces  are 
back  of  a  measure  upon  which  even  the  legislative 
leaders  may,  in  fact,  never  have  been  consulted  at  all. 
The  influence  which  is  brought  to  bear  by  the  leaders 
of  the  organization  in  order  to  control  individual 
members  is  exceedingly  varied  and  always  adapted 
/to  the  conditions  of  the  particular  case.  The  organ-' 
ization  can,  to  begin  with,  count  on  the  legitimate 
influence  which  justly  belongs  to  the  strong  interests 
which  it  represents.  But  as  these  interests  almost 
invariably  desire  more  privileges  than  they  are  en- 
titled to  upon  an  impartial  basis  of  general  welfare, 
and  as  the  politicians  with  whom  they  have  associated 
themselves  are  moreover  ambitious  for  complete  con- 
trol, they  simply  use  such  legitimate  influence  as  a 
nucleus  about  which  to  construct  a  powerful  system 
of  government.  The  most  effective  weapon  in  the 
hands  of  the  organization,  when  it  confronts  men  of 
independent  spirit  and  good  character,  is  the  warning 
that  their  usefulness  will  be  destroyed,  unless  they 
ally  themselves  with  the  strong  interests.  The  lead- 
ers urge  with  truth  that  legislation  is  a  matter  of 

246 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

compromise,  that  you  cannot  expect  to  put  your 
measures  through  singlehandedly ;  and  they  offer  their 
influence  in  return  for  a  member's  vote.  If  he  con- 
tinues refractory  they  ignore  or  oppose  him,  and  he 
finds  it  exceedingly  difficult  to  procure  a  hearing  for 
his  bills.  Moreover,  he  will  receive  very  scant  credit 
for  his  active  and  vigilant  attention  to  the  interests 
of  the  public.  When  he  has  headed  off  one  corrupt 
measure,  twenty  will  spring  up  to  take  its  place. 
Unless  a  man  of  extraordinary  character  and  ability, 
he  is  generally  forced  by  the  very  insistence  of  his 
constituents  to  make  some  kind  of  a  compromise  in 
order  to  ** restore  his  usefulness.'* 

Where  the  system  through  its  influence  with  hold- 
over members  has  gained  control  of  the  House  organ- 
ization, its  power  to  assign  members  to  committees 
gives  it  abundant  means  of  enticement,  and  many 
men  mortgage  their  legislative  independence  at  the 
very  beginning  of  the  session  for  the  empty  honor 
of  being  placed  on  a  prominent  committee.  The  ap- 
pointment of  committees  is  often  delayed  for  weeks 
and  months,  in  order  to  give  the  organization  an 
opportunity  to  test  its  material  before  grouping  it 
for  actual  business.  During  the  early  part  of  the 
session,  patronage  is  also  used  for  the  purpose  of 
enlisting  recruits  for  the  machine,  in  states  where 
the  patronage  is  not  equally  divided  per  capita.  The 
methods  of  indirect  bribery  are  numberless.  A  cor- 
poration which  has  heavily  subscribed  to  the  cam- 
paign expenses  of  a  legislator,  feels  entitled  to  his 
vote  whenever  its  interests  are  involved.  There  are 
many  favors  at  the  disposal  of  powerful  corporations 
'  247 


AMERICAN  LEGISLATURES 


whicli  do  not  come  under  the  statute  of  bribery,  but 
which  serve  the  same  purpose.  Employment  given 
to  the  relatives  of  a  member,^  opportunity  to  pur- 
chase at  favorable  rates  stock  and  other  property, 
rebates  on  transportation  charges,  and  free  passes, 
are  favored  and  common  methods.  Though  the  giv- 
ing of  passes  was  forbidden  by  the  constitution  of 
Pennsylvania,  yet  they  were  for  a  long  time  freely 
distributed  as  there  wa^  no  legislation  to  enforce  the 
constitutional  prohibition.  The  connection  of  legis- 
lators with  the  stock  market  is  often  very  close  and 
most  corrupting  in  its  influence.  In  Illinois,  the  gas 
combination  bill  of  1897  was  deliberately  juggled, 
authoritative  reports  with  respect  to  its  progress  in 
committee  being  given  out  from  time  to  time  in  order 
to  enable  members  to  take  advantage  of  the  conse- 
quent fluctuations  in  the  market  price.  In  1905,  the 
notorious  **Ten"  carried  through  a  scheme  in  the 
New  York  Senate,  by  which  the  Chicago  and  Eastern 
Illinois  Railway  bonds  were  to  be  included  in  the 
savings  bank  bill  as  proper  securities  for  investment. 
The  *' Black  Horse  Cavalry"  had  succeeded  in  a 
similar  deal  formerly,  and  members  had  made  a  large 
profit  on  the  consequent  appreciation  of  the  bonds  in 
question.  A  favorite  method  by  which  lobbyists 
transfer  money  to  legislators  is  through  a  friendly 
^Joint  rule  No.  30  of  the  Massachusetts  legislature  provides 
as  follows:  ''A  member  of  either  branch  who  directly  or  indi- 
rectly solicits  for  himself  or  others  any  position  or  ofl&ce 
within  the  gift  or  control  of  a  .  .  .  public-service  corporation, 
shall  be  subject  to  suspension  therefor,  or  to  such  other  pen- 
alty as  the  branch  of  which  he  is  a  member  may  see  fit  to 


248 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

game  of  poker.  Even  though  no  direct  arrangement 
has  been  made  with  the  legislator  this  method  proves 
very  ejSicient,  as  a  man  who  continually  allows  him- 
self to  be  beaten  at  poker  is  a  valuable  friend  indeed 
to  the  needy  legislator.  This  manner  of  payment  has 
the  great  advantage  of  being  perfectly  safe  before 
the  law  and  at  the  same  time  so  notorious  that  a 
legislator  who  has  been  allowed  to  win  large  sums 
of  money,  would  hardly  dare  to  go  back  upon  his 
lobbyist  friends  when  the  critical  vote  comes  up. 

But  it  is  not  always  necessary  that  means  be  re- 
sorted to  which  involve  offices  or  money  considera- 
tions. The  inexperienced  legislator  without  money 
or  friends  becomes  acquainted  with  some  tactful 
lobbyist;  through  him  he  is  introduced  to  influential 
members  and  also,  if  he  desires,  to  the  social  life  of 
the  capital.  He  is  given  assistance  in  preparing  his 
bills,  material  is  collected  for  him  when  he  wishes  to 
make  a  speech,  or  to  favor  or  oppose  some  measure 
in  committee.  Thus  difficulties  are  smoothed  over, 
information  supplied,  and  social  pleasures  made  ac- 
cessible by  a  cordial  friend  who  never  mentions  legis- 
lative business.  Should,  towards  the  end  of  the  ses- 
sion, this  friend  casually  remark,  "By  the  way,  bill 
No.  212  comes  up  to-day.  It  's  a  good  bill  and  I  want 
to  see  it  pass.  I  hope  you  will  give  me  your  assist- 
ance''; there  are  few  members  that  have  gone  thus 
far  who  will  refuse  this  request,  and  the  purpose  of 
the  lobbyist  has  been  accomplished.  It  has  been 
common  for  prominent  corporations  to  have  head- 
quarters in  the  capital  city  at  some  house  where  open 
hospitality  is  dispensed.  In  the  New  York  insurance 
'  249 


AMERICAN  LEGISLATURES 


investigation  it  came  out  that  the  New  York  Life  in 
ten  years  paid  out  $1,117,697  for  *'the  supervision 
of  matters  of  legislation."  This  sum  was  paid  with- 
out adequate  vouchers  to  one  man  to  be  used  by  him 
at  his  discretion.  The  results  of  the  investigation 
are  summarized  by  the  committee  in  the  following 
language :  ^  ' '  Nothing  disclosed  by  the  investigation 
deserves  more  serious  attention  than  the  systematic 
efforts  of  the  large  insurance  companies  to  control 
a  large  part  of  the  legislation  of  the  state.  They 
have  been  organized  into  an  offensive  and  defensive 
alliance  to  procure  or  to  prevent  the  passage  of  laws 
affecting  not  only  insurance,  but  a  great  variety  of 
important  interests  to  which,  through  subsidiary 
companies  or  through  the  connections  of  their  officers, 
they  have  become  related.  Their  operations  have  ex- 
tended beyond  the  state  and  the  country  has  been 
divided  into  districts  so  that  each  company  might 
perform  conveniently  its  share  of  the  work.  Enormous 
sums  have  been  expended  in  a  surreptitious  manner. 
Irregular  accounts  have  been  kept  to  conceal  the 
payments  for  which  proper  vouchers  have  not  been 
required.  This  course  of  conduct  has  created  a  wide- 
spread conviction  that  large  portions  of  this  money 
have  been  dishonestly  used.  .  .  . 

*'The  large  insurance  companies  systematically 
attempted  to  control  legislation  in  this  and  other 
states  which  could  affect  their  interests  directly  or 
indirectly.  .  .  .  The  three  companies  divided  the 
country,  outside  of  New  York  and  a  few  other  states, 

'Report  of  the  Committee,  New  York  Assembly  Document 
No.   41,  1906,  pp.  394  et.  seq.  and  p.  19. 

250 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

so  as  to  avoid  a  waste  of  effort,  each  looking  after 
legislation  in  its  chosen  district  and  bearing  its  ap- 
propriate part  of  the  total  expense.  .  .  . 

''It  has  been  insisted  that  the  insurance  companies 
have  been  so  continuously  menaced  by  the  introduc- 
tion of  improper  and  ill-advised  legislative  measures 
in  many  states  that  they  have  been  compelled  to 
maintain  a  constant  watchfulness  and  to  resort  to 
secret  means  to  defeat  them.  An  insurance  corpora- 
tion, however,  holds  a  position  of  peculiar  advantage 
in  opposing  any  legislative  measure  which  really 
antagonizes  the  interests  of  policy-holders.  .  .  . 

''The  pernicious  activities  of  corporate  agents  in 
matters  of  legislation  demand  that  the  present  free- 
dom of  lobbying  should  be  restricted.  They  have 
brought  suspicion  upon  important  proceedings  of 
the  Legislature,  and  have  exposed  its  members  to 
consequent  assault.  The  Legislature  owes  it  to  itself, 
so  far  as  possible,  to  stop  the  practice  of  the  lavish 
expenditure  of  moneys  ostensibly  for  services  in  con- 
nection with  the  support  of  or  opposition  to  bills, 
and  generally  believed  to  be  used  for  corrupt  pur- 
poses. ..." 

The  president  of  a  large  insurance  company  indig- 
nantly denied  any  attempt  at  bribing  legislators. 
He  however  admitted  that  the  representatives  of  the 
company  had  "seen"  persons  who  were  known  to 
have  influence  over  the  legislators.  This  indirect 
approach  of  legislators  through  their  political  god- 
fathers is  very  common  indeed.  In  the  words  of  a 
representative  of  a  prominent  corporation,  "I  let 
others  waste  their  money  buying  legislators.  I  go  to 
*251 


AMERICAN  LEGISLATUEES 


the  man  who  owns  them.  He  does  the  work.''  The 
owners  of  a  legislator  are  not  generally  politicians. 
They  are  frequently  business  men  on  whom  the  legis- 
lator is  financially  dependent,  or  who  have  power  to 
advance  him  in  his  calling  or  profession.  The  advice 
given  by  such  persons  is  usually  followed,  and  in 
many  cases  the  legislator  is  not  aware  that  his  action 
is  being  manipulated. 

When  the  work  of  reform  is  systematically  under- 
taken, the  reform  forces,  through  the  votes  which 
they  control,  can  wield  a  powerful  influence  even 
over  corrupt  groups.  Thus  in  1903  when  the  citizens 
of  Chicago  demanded  just  traction  legislation,  the 
Senate  combine  recognized  that  something  had  to  be 
done.  Accordingly  after  some  juggling  they  passed 
the  Mueller  bill,  which  caused  the  wreck  of  the 
speaker's  organization  in  the  House.  In  Connecticut 
in  1905,  to  the  infinite  surprise  of  everybody,  a  strong 
corrupt  practices  act  was  passed  in  the  face  of  oppo- 
sition from  the  bosses.  The  reformers  were  helped 
by  the  fact  that  the  ordinary  politicians  recognized 
that  there  was  some  force  back  of  the  reform  move- 
ment, and  also  that  politics  had  become  so  expensive 
a  game  that  it  could  be  played  only  by  the  very  rich. 
Even  the  organization  people  are  coming  to  admit 
that  a  determined  group  of  reformers  must  be  listened 
to;  and  though  the  practical  politicians  still  have  a 
vast  amount  of  contempt  for  the  reformer,  they  have 
been  forced  to  familiarize  themselves  with  the  idea 
that  there  is  such  a  thing  as  a  public  interest  which 
some  men  will  actually  work  for  without  any  pecuniary 
return  to  themselves.    But  the  idea  that  all  legislation 

252 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

should  be  dealt  with  on  this  basis  is  still  far  from 
having  a  common  acceptance.  When,  in  1905,  the 
Chicago  Board  of  Trade  desired  the  passage  of  a  bill 
legalizing  certain  trade  transactions,  it  decided  to 
refrain  from  all  attempts  at  corrupt  influence;  but 
a  certain  element  in  the  legislature  prevented  the 
passing  of  this  measure.  ''Reform  methods,"  "lily- 
white  lobbying,"  were  said  to  be  inappropriate  to  a 
bill  which  might  be  desirable  for  the  Board  of  Trade, 
but  for  which  no  public  propaganda  could  be  made; 
for  though  in  no  sense  a  corrupt  measure,  it  was  not 
one  in  which  the  people  in  general  would  be  inter- 
ested. A  new  distinction  was  thus  evolved.  The 
legislator  will  listen  to  a  reformer  with  a  strong 
voting  constituency.  But  the  man  who  simply  asks 
for  a  measure  to  render  his  business  safer  or  who 
wishes  the  law  with  regard  to  it  to  be  more  settled, 
will  be  called  upon  for  some  quid  pro  quo  by  the  cor- 
rupt element. 

It  is  often  stated  that  the  industrial  and  com- 
mercial interests  are  forced  to  the  adoption  of  cor- 
rupt methods  for  the  purpose  of  self  protection 
against  unreasonable  legislation  or  of  securing  such 
laws  as  are  necessary  to  the  proper  prosecution  of 
their  business.  The  president  of  a  New  York  insur- 
ance company  declared  that  eighty  per  cent,  of  all 
legislative  bills  referring  to  insurance  are  ''hold-up" 
measures,  and  similar  statements  have  been  made 
again  and  again  to  defend  the  practice  of  corruption. 
It  is  indeed  unhappily  a  fact  that  the  kind  of  bill 
known  as  a  "  strike "  is  of  exceedingly  common  occur- 
rence. Other  designations  for  it  are  "hold-up  bill," 
'     253 


AMERICAN  LEGISLATURES 


'*sandbagger,"  ''fetcher,"  ^'old  friend,"  ^'bell- 
ringer"  and  ''regulator."  This  last  designation  re- 
fers to  the  assumed  purpose  of  this  class  of  measures 
to  regulate  the  business  of  corporations.  There  is 
usually  no  real  intention  to  enact  them,  but  the  organ- 
ization holds  them  in  reserve  in  order  to  punish 
some  refractory  interest  or  to  make  its  power  felt 
by  the  corporations.  Often  individual  freebooters 
engage  in  this  kind  of  business,  in  the  hope  that 
through  the  inadvertence  of  other  members  and 
through  log-rolling  they  may  advance  such  a  measure 
to  a  position  where  it  will  render  the  interest  affected 
nervous  and  ready  to  come  to  some  arrangement  with 
the  originator  of  the  bill.  But  this  individual  free- 
booting  cannot  be  very  successful  unless  it  is  carried 
on  with  the  assistance  of  some  organization.  In 
some  legislatures  the  first  months  of  the  session,  aside 
from  unimportant  local  legislation,  have  been  given 
almost  entirely  to  the  manipulation  of  "regulators" 
and  the  securing  for  them  of  a  good  strategical  posi- 
tion on  the  calendar  of  either  house.  While  the  or- 
ganization is  thus  occupied,  really  important  public 
legislation  is  allowed  to  lie  over  till  the  rush  of  the 
last  days  begins.  But  to  argue  that  the  existence  of 
these  conditions  forces  the  corporations,  and  espe- 
cially the  stronger  interests,  into  legislative  corrup- 
tion is  certainly  not  convincing.  It  is  conceivable 
that  a  smaller  corporation  may  be  forced  to  buy  im- 
munity in  individual  cases,  but  the  more  powerful 
interests  which  exercise  the  real  control  must  cer- 
tainly know  that  money  spent  to  avoid  vicious  legis- 
lation is  worse  than  wasted,  since  the  appetite  grows 

254 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

by  what  it  feeds  on.  From  a  study  of  the  legislative 
action  of  the  great  industrial  interests  it  is  apparent 
that  they  often  do  not  go  into  the  legislatures  pri- 
marily for  the  purpose  of  self-defense,  but  on  account 
of  a  desire  to  gain  undue  privileges  denied  to  others, 
and  to  resist  legislation  which  the  real  interests  of  the 
public  demand.  Thus  the  insurance  companies  op- 
posed legislation  to  compel  them  to  put  the  entire 
contract  into  the  policy,  or  forbidding  them  to  allege 
that  their  paid  employees  are  also  the  agents  of  the  in- 
sured. The  manner  in  which  the  transportation  in- 
terests have  resisted  the  enactment  of  laws  demanded 
by  public  policy  and  by  ordinary  regard  for  human 
life,  and  have  constantly  pressed  for  special  privi- 
leges and  exemptions,  is  notorious.  If  their  only  pur- 
pose were  self-defense,  they  would  attempt  to  ally 
themselves  with  the  honest  legislators  and  keep  them 
honest :  that  would  be  their  best  protection.  But  in- 
stead of  this,  it  is  the  almost  invariable  practice  of 
their  representatives  to  associate  with  the  corrupt 
elements  and  to  use  every  device  ingenuity  can  sug- 
gest to  render  honest  men  corrupt. 

At  the  meeting  of  the  legislative  session  of  1905 
in  Missouri,  Governor  Folk  promulgated  certain  rules 
for  the  lobby.  Lobbyists  were  required  to  register 
every  time  they.,  came  to  the  capital,  stating  accu- 
rately the  business  which  brought  them  and  specifying 
the  measures  they  desired  to  favor  or  oppose.  They 
were  not  allowed  to  stay  more  than  thirty  hours  at  a 
time  in  Jefferson  City.  In  return  for  a  faithful 
observance  of  these  rules  the  governor  promised  the 
special  interests  that  he  would  not  allow  any  **hold- 
•   255 


#^ 


AMERICAN  LEGISLATURES 


up"  measure  to  pass,  an  agreement  which  he  kept 
by  vetoing  several  bills  which  might  fairly  be  sus- 
pected of  that  purpose.  As  a  rod  to  compel  obedience 
he  held  over  the  heads  of  the  lobbyists  the  threat  of 
an  investigation.  The  governor  of  Kansas  ridded  the 
legislature  of  the  entire  Standard  Oil  lobby  during 
the  controversy  of  1905,  by  threatening  an  investi- 
gation and  getting  the  grand  jury  ready  for  business. 
When  the  legislative  houses  have  been  organized 
in  accordance  with  the  desires  of  the  system,  it  is 
then  not  difficult  for  the  latter  to  control  the  entire 
course  of  legislation.  The  business  can  be  so  arranged 
that  discussion  of  important  matters  is  delayed  until 
the  larger  part  of  the  session  has  passed  and  members 
become  anxious  to  return  home.  It  is  then  an  easy 
matter  liberally  to  suspend  the  rules  and  to  rush 
through  the  measures  agreed  upon  by  the  organiza- 
tion. During  the  first  three  months  of  1903,  the  ses- 
sions of  the  Illinois  Senate  occupied  altogether  thirty- 
six  hours,  twenty-one  of  the  sessions  being  of  less 
than  fifteen  minutes'  duration.  During  these  thirty- 
six  hours  456  bills  were  introduced  and  120  passed, 
all  the  important  measures  being  held  back  to  be 
crowded  upon  the  calendar  during  the  closing  days 
of  the  session.  During  one  of  these  sessions  lasting 
four  hours  (April  24),  outside  of  the  receiving  of 
reports  and  the  discussion  of  the  civil  service  bill, 
there  were  passed  thirty-six  bills,  including  some  of 
the  most  important  appropriation  measures,  none  of 
which  were  either  explained  or  discussed.  During 
the  same  session,  the  omnibus  bill,  carrying  appro- 

256 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

priations  to  the  amount  of  $3,700,000,  was  read  only 
by  title  and  passed  without  a  word  of  discussion.^ 

Though  we  have  become  fairly  well  reconciled  to 
the  idea  that  an  adequate  discussion  of  public  meas- 
ures cannot  be  had  upon  the  floor  of  a  legislative 
body,  it  is  usually  supposed  that  at  least  in  the  com- 
mittees the  merits  of  the  various  bills  are  carefully 
considered.  But  not  even  this  is  the  case  in  legisla- 
tures where  the  organization  is  strong.  There  the 
committee  is  looked  upon  solely  as  an  instrument  for 
effecting  the  purposes  of  the  organization.  Large 
committees  are  favored  by  the  system  because  they 
can  be  controlled  through  a  select  ring  by  the  use  of 
sub-committees;  the  majority  of  the  members  are 
kept  in  the  dark  and  the  formal  meetings  simply  give 
opportunity  to  the  chairman  to  get  a  vote  on  the 
measures  desired  by  the  organization.  In  states  where 
such  conditions  prevail  the  time  of  committee  meet- 
ings is  never  sufficiently  announced.  Meetings  are 
called  at  the  pleasure  of  the  chairman  and  at  a  time 
most  suitable  for  his  particular  schemes.  It  is  in- 
deed quite  necessary  that  all  states  should  adopt  and 
enforce  legislation  like  that  of  Massachusetts,  which 
requires,  sufficient  notice  of  all  committee  meetings. 
Under  prevailing  conditions,  not  only  interested  out- 
siders but  members  of  the  committee  itself  often  find 
it  impossible  to  learn  what  is  actually  being  done  in 
the  name  of  the  committee,  and  what  forces  are  work- 

»F.  W.  Parker,  *'A  State  Legislature  Seen  from  Within,'' 
"Christendom,"  1903;  a  series  of  articles  by  a  state  senator, 
giving  an  excellent  insight  into  legislative  procedure. 

^7  257 


AMERICAN  LEGISLATURES 


ing  for  the  measures  that  are  being  advanced.  If  it 
is  the  purpose  of  the  political  managers  not  to  allow 
a  certain  committee  to  exercise  a  prominent  influence 
the  chairman  will  not  issue  a  call  for  a  meeting,  or  he 
will  fix  some  inconvenient  time  when  no  quorum 
can  be  secured.  If  he  has  the  backing  of  the  organ- 
ization, there  is  no  check  whatever  on  his  action.  He 
may  declare  measures  passed  by  the  committee  and 
report  on  them,  though  they  have  actually  never  re- 
ceived consideration  or  been  assented  to.  On  the 
other  hand  an  unwelcome  measure  passed  by  the 
majority  may  be  carried  about  by  him  indefinitely, 
and  he  may  find  it  inconvenient  to  report  on  it  at  all. 
As  in  general  it  is  unwise  to  stir  up  bitter  feelings, 
such  methods  will  be  avoided  as  long  as  possible  and 
carefully  veiled  when  they  are  employed.  If  a  re- 
port on  an  unsavory  measure  is  desired,  the  chair- 
man may  refer  it  to  a  sub-committee  composed  of 
reliable  henchmen.  There  may  be  many  such  meas- 
ures before  the  committee,  and  the  majority  of  the 
members  may  be  otherwise  so  busily  engaged  that 
they  cannot  investigate  the  nature  of  all  these  sub- 
committee proceedings,  and  will  thus  be  inclined  to 
accept  the  reports  which  the  chairman  insists  upon. 
During  the  latter  part  of  the  session  when  business 
is  crowding,  committee  bills  are  often  sent  around  to 
the  various  members  with  a  request  to  sign  the  favor- 
able report  on  them  as  they  are  ' '  all  right. ' '  Lack  of 
time  for  investigation  and  undue  confidence  generally 
induce  a  majority  of  the  members  of  the  committees 
to  affix  their  names,  and  the  bills  are  reported. 

The  constitutional  and  legal  rules  of  procedure  are 
258 


V 


y 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

all  modified  in  practice  to  accord  with  the  peculiar 
methods  of  the  organization.  Constitutional  safe- 
guards are  almost  futile  as  long  as  the  organization 
has  the  power  to  command  action  by  common  con- 
sent. The  reading  of  the  journal  is  quite  often  dis- 
pensed with,  and  this  document  which  authoritatively 
records  the  action  of  the  legislative  body  is  usually 
not  printed  till  several  days  have  elapsed.  The  cal- 
endar which  ought  to  be  a  safe  guide  to  members  is 
made  up  arbitrarily  and  disregarded  in  practice. 
Measures  are  placed  upon  it,  or  taken  off,  or  advanced 
over  others  at  will  by  ** general  consent.'*  The  con- 
fusion in  the  sessions  is  often  such  that  it  is  impossible 
to  follow  the  course  of  business,  leaving  the  speaker 
absolutely  free  to  interpret  according  to  his  own 
pleasure  and  interest  what  is  being  done.  The  rapid- 
ity with  which  the  organization  can  carry  through 
its  measures  is  illustrated  by  the  street  railway  fran- 
chise bills  of  1901  in  Pennsylvania.  The  bills  were 
referred  and  reported  back  in  five  minutes.  They 
had  three  separate  readings  in  the  Senate  and  the 
House  on  successive  days,  and  were  then  immediately 
signed  by  the  governor.  Thirteen  city  councils,  tools 
of  the  organization,  under  authority  of  these  acts, 
forthwith  turned  out  the  necessary  franchises.  The 
quality  of  the  parliamentary  law  created  by  the  ma- 
chine is  illustrated  by  the  decision  of  the  speaker  of 
the  Pennsylvania  Assembly  on  the  Erie  water  front 
bill.  Four  members  had  been  wrongfully  recorded  as 
voting  "Aye,"  their  votes  being  necessary  to  pass  the 
bill.  Objection  being  made  when  the  journal  was 
read,  the  speaker  ruled  that  the  roll-call  record  could 

'259 


AMERICAN  LEGISLATURES 


not  be  changed.  This  extraordinary  ruling  of  course 
put  it  into  the  hands  of  the  speaJier  to  pass  any  bill 
he  pleased  by  simply  instructing  the  clerk  to  record 
a  sufficient  number  of  names  as  voting  ''Aye.'' 

The  true  inwardness  of  organization  gavel-rule  is 
excellently  brought  out  in  the  following  paragraphs 
in  a  pamphlet  on  the  Illinois  Legislature  prepared  by 
the  Illinois  Legislative  Voters'  League  in  1903: 

"To  explain  the  importance  of  House  organization 
it  is  necessary  to  discuss  the  parliamentary  rules  and 
tactics  used  in  steering  a  bill  through  the  House. 
The  road  is  long  and  hard  without  the  friendship  of 
the  committee  to  which  the  bill  is  referred  and  of  the 
speaker,  who  can  wield  the  gavel  to  help  or  hinder  its 
progress.  The  bill  must  go  to  committee,  be  printed, 
be  reported  out  to  pass  and  be  read  on  three  different 
days.  It  may  be  amended  after  the  second  reading; 
it  must  be  engrossed  before  the  third  reading.  Then 
it  is  in  the  order  of  passage,  and  requires  in  the 
House  seventy-seven  votes  to  pass.  With  a  friendly 
House  and  speaker,  it  may  on  introduction,  by  unani- 
mous consent  (wholly  dependent  on  the  speaker's 
hearing  objections  if  made),  be  read  a  first  time  with- 
out reference  to  a  committee,  read  a  second  time  on 
the  following  day  and  on  the  third  day  passed.  This 
is  the  short  road.  The  bill  to  provide  for  the  inci- 
dental expenses  of  the  Assembly  invariably  follows 
this  route. 

* '  On  the  other  hand,  consider  the  petty  annoyances 
to  which  a  decent  member  outside  the  'organization' 
may  be  subjected,  and  the  methods  by  which  legit- 
imate legislation,  backed  by  him,  may  be  blocked. 

260 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

The  bill  goes  to  an  unfriendly  committee.  The  chair- 
man refuses  to  call  the  committee  together,  or  when 
forced  to  call  it,  a  quorum  does  not  attend.  In  case 
a  quorum  attends  the  point  may  be  raised  that  the 
bill  is  not  printed,  or  the  chairman  may  fail  to  have 
the  original  bill  with  him.  Action  may  be  postponed 
on  various  pretexts,  or  the  bill  may  be  referred  to  a 
sub-committee.  The  committee  may  kill  the  bill  by 
laying  it  on  the  table.  On  the  other  hand  the  com- 
mittee may  decide  that  the  bill  be  reported  to  the 
House  to  pass.  Then  a  common  practice  is  for  the 
chairman  to  pocket  the  bill,  delaying  to  report  it  to 
the  House  till  too  late  to  pass  it.  When  finally  re- 
ported to  the  House,  it  goes  on  the  calendar  to  be 
read  a  first  time  in  its  order.  Then  begins  the  ad- 
vancing of  bills  by  unanimous  consent,  without  wait- 
ing to  reach  them  in  order.  Here  is  where  the  organ- 
ization has  absolute  control.  Unanimous  consent  is 
subject  to  the  speaker's  acuteness  of  hearing.  His 
hearing  is  sharpened  or  dulled  according  to  the  good 
standing  of  the  objector  or  of  the  member  pushing 
the  bill.  If  one,  not  friendly  to  the  House  'organiza- 
tion, '  wants  to  have  his  bill  considered  over  an  objec- 
tion, he  must  move  to  suspend  the  rules.  The  speaker 
may  refuse  to  recognize  him,  or  may  put  his  motion 
and  declare  it  carried  or  not  carried  as  suits  his  and 
the  'organization's'  desires.  So  the  pet  bills  are 
jumped  over  others  ahead  of  them  on  the  calendar, 
while  the  ones  not  having  the  backing  of  the  House 
'organization'  are  retired  farther  and  farther  down 
until  their  ultimate  passage  becomes  hopeless.  If  the 
bill  of  the  independent  member  reaches  second  read- 
-  261 


AMERICAN  LEGISLATURES 


ing  it  may  be  killed  by  striking  out  the  enacting 
clause  or  by  tacking  on  an  obnoxious  amendment  that 
makes  it  repulsive  to  its  former  friends.  A  refer- 
endum requiring  not  a  majority  of  those  voting  on 
the  bill,  but  a  majority  of  all  the  votes  cast  at  the 
election  to  adopt  it,  is  a  new  and  favorite  method  of 
shelving  a  bill  by  amendment.  To  carry  out  the  will 
of  the  organization,  the  speaker  declares  amendments 
carried  or  the  contrary  on  viva  voce  vote.  Demands 
for  roll-calls  are  ignored  by  him  in  violation  of  the 
members'  constitutional  rights.  This  is  called  gaveling 
a  bill  through.  Formerly  the  gavel  was  used  to  carry 
through  political  measures  of  the  majority  party  and 
to  prevent  obstructive  and  dilatory  tactics  of  the 
minority  party.  By  a  gradual  growth  it  has  come  to 
be  used  to  help  or  defeat  legislation  in  which  the 
organization  has  an  interest,  although  the  majority 
may  have  a  contrary  view.  What  the  speaker  de- 
clares, the  clerk  must  record,  and  what  the  clerk 
records  no  court  will  set  aside. ' ' 

When  a  measure  called  for  by  public  opinion  has 
finally  been  permitted  to  reach  the  floor  of  the  House, 
there  still  remains  the  supreme  test  of  amendment 
by  which  its  purpose  may  be  utterly  changed  though 
its  name  be  retained.  The  history  of  the  Mueller  bill 
in  the  Illinois  legislature  offers  a  classic  example. 
The  Senate  in  response  to  pressure  from  the  reform 
element  had  passed  the  bill  and  had  safely  entrusted 
it  to  the  organization  committee  in  the  House  in  the 
assured  confidence  that  it  would  be  made  harmless.  A 
member  of  Congress,  at  the  time  the  boss  of  the  organ- 
ization, tried  to  persuade  the  reformers  to  accept  the 

262 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

Lindly  amendment  on  the  ground  that  nothing  better 
could  be  secured.  The  backers  of  the  bill  refused  and, 
considering  the  extent  to  which  public  attention  had 
been  aroused,  the  bill  had  perforce  to  be  reported  in 
the  House.  No  discussion  was  there  allowed;  the 
Lindly  amendment  was  offered  and  the  speaker  pro- 
ceeded to  gavel  it  through.  Then  for  once  the  oppo- 
sition revolted.  With  loud  shouts  of  *' roll-call, "  the 
members  rose  from  their  seats  and  rushed  toward 
the  speaker,  who  was  obliged  to  flee  for  safety.  The 
House  immediately  calmed  down,  elected  a  speaker 
pro  tempore,  and  passed  the  Mueller  bill  in  its  orig- 
inal form. 

A  consideration  of  the  legislative  measures  actually 
demanded  by  the  special  interests  will  make  it  plain 
that  they  are  not  based  upon  the  idea  of  equal  jus- 
tice to  all  interests  and  classes  of  the  community,  but 
that  they  <jonstitute  a  plain  attempt  to  get  unusual 
advantages  and  privileges  for  certain  groups.  Rail- 
ways seek  exemption  from  taxes,  freedom  from  re- 
strictions upon  their  traffic  management  such  as  the 
requirement  of  safety  appliances,  and  absolute  liberty 
to  control  their  rate  schedules.  Electric  railways 
and  gas  companies  demand  long  term  franchises  and 
exclusive  monopoly  rights  and  the  gratuitous  conces- 
sion to  them  of  valuable  public  property.  The  success- 
ful work  of  the  trolley  interests  in  Rhode  Island  is 
very  instructive.  In  1891,  an  act  was  passed  by  the 
legislature  empowering  any  town  council  to  grant 
exclusive  street  railway  franchises  for  twenty  years. 
However,  the  promoters  soon  found  that  they  had 
made  a  mistake  in  not  asking  for  a  perpetual  charter 
.-       263 


AMERICAN  LEGISLATURES 


which  would  have  been  far  more  acceptable  to  in- 
vestors. As  even  in  Rhode  Island  pills  have  to  be 
sugar-coated  and  the  outright  demand  of  the  article 
they  wanted  might  have  been  too  startling,  they  se- 
cured the  passage  of  an  act  imposing  an  annual  tax 
of  one  per  cent,  on  the  gross  earnings  of  the  street 
railway  corporations  accepting  it.  This  combined 
statute  and  contract  was  held  to  imply  a  recognition 
on  the  part  of  the  state  that  the  charters  held  by  the 
corporations  were  unlimited  by  time.^  A  sweeping  mo- 
nopoly was  secured  by  the  Consolidated  Street  Railway 
Company  in  Connecticut  in  1905.  This  corporation 
is  a  holding  company  by  which  the  New  Haven  Rail- 
road controls  its  trolley  system.  The  legislature  be- 
ing favorably  disposed,  the  company  got  a  charter  of 
almost  unlimited  privilege,  to  which  was  added  a 
clause  vesting  the  corporation  with  all  the  charter 
rights  of  any  or  all  of  the  constituent  companies,  so 
that  whatever  species  of  franchise  or  privilege  has 
ever  been  secured  by  any  company  of  this  nature  in 
Connecticut  is  now  enjoyed  completely  and  forever 
by  the  Consolidated  Railway  Company.  Not  satisfied 
with  these  achievements  the  company  riveted  its 
monopoly  by  having  the  general  railway  law  in  the 
state  amended  so  as  to  prohibit  new  competing  lines 
from  crossing  the  state  without  express  legislative 
sanction.  A  very  interesting  instance  of  the  difference 
it  makes  whose  sheep  has  been  bitten  is  afforded  by  a 
bill  introduced  in  Pennsylvania  in  1905,  forbidding 
any  constable  from  serving  papers  for  any  organiza- 
tion unless  the  consent  of  the  police  had  first  been 
*  Public  Laws  of  R.  I.,  1898,  ch.  580. 

264 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

secured.  This  biU  was  directed  against  the  Law  and 
Order  Society  of  Philadelphia,  which  for  two  decades 
had  fought  lawlessness  and  vice  in  the  metropolis  and 
secured  for  it  what  immunity  from  violence  and  crime 
it  has  enjoyed.  The  existence  of  such  an  association, 
which  actually  attempts  to  enforce  the  law,  was  of 
course  a  thorn  in  the  flesh  of  the  ''gang.'*  The  bill, 
though  opposed  by  some  members,  got  along  finely 
until  the  Pennsylvania  Railroad  discovered  that  their 
own  investigation  and  prosecution  of  crimes  against 
their  property  would  be  impeded  by  it.  Then  sud- 
denly the  bill  sank  below  the  surface  never  to  appear 
again* 

The  campaign  made  for  a  long-term  franchise  for 
the  Chicago  street  railway  companies  was  full  of 
striking  turns  and  deviations.  For  this  purpose  the 
state  machine,  which  the  railways  had  built  up,  but 
which  just  then  they  did  not  need  especially,  was 
utilized.  The  measure  passed  both  houses  without 
difficulty,  but  happily  the  governor  was  a  man  who 
guarded  the  public  welfare.  So  the  ''interests"  had 
to  go  to  some  trouble  in  order  to  secure  more  willing 
instruments.  When  the  session  of  1897  opened,  their 
hopes  stood  high.  The  Humphrey  bill  granting  a 
fifty-year  charter  was  introduced;  but  meanwhile  the 
reform  sentiment  had  grown  so  strong  that,  while  the 
gas  combination  bill  was  passed  and  signed,  the  nerve 
of  the  managers  failed  them  when  it  came  to  traction 
legislation,  and  they  substituted  the  Allen  bill  which 
conferred  upon  the  Common  Council  of  Chicago  the 
power  to  grant  a  long  franchise.  The  bill  was  stoutly 
opposed  by  the  reform  element  and  had  to  be  gaveled 
'265 


AMERICAN  LEGISLATURES 


through  the  House.  But  the  opposition  was  now  thor- 
oughly aroused,  and  by  dint  of  the  greatest  vigilance 
they  prevented  any  extreme  action  by  the  Council. 
They  demanded  legislation  giving  the  voters  of  the 
city  the  power  over  traction  matters ;  and  although  a 
bill  for  this  purpose  was  in  1901  strangled  in  com- 
mittee, they  succeeded  two  years  later  in  having  the 
Mueller  bill  passed  which  has  already  been  referred  to. 
The  desire  of  the  politician,  lobbyist,  and  boss  to 
give  powers  to  officers  or  boards  which  they  feel  able 
to  control,  is  at  the  bottom  of  that  unsettling  and  dis- 
membering of  institutions  which  is  effected  by  the 
so-called  ** ripper"  legislation.  The  term  "ripper" 
bill  designates  a  measure  which,  in  disregard  of  con- 
stitutional practice  and  rational  principles  of  admin- 
istration, tears  to  pieces  constitutional  and  legal  ar- 
rangements and  distributes  administrative  powers 
among  willing  tools.  *' Ripper"  legislation  is  the 
fruit  of  ** ripper"  practice  in  legislative  procedure. 
The  total  disregard  of  constitutional  and  parlia- 
mentary rules  naturally  leads  to  legislation  in  which 
all  principles  of  a  sane  and  settled  polity  are  ignored. 
As  the  party  machinery  grew  more  and  more  invinci- 
ble in  Pennsylvania,  the  constitutional  restrictions  of 
1873  were  gradually  set  at  naught.  Only  upon  rare 
occasion  was  the  political  conscience  successfully  ap- 
pealed to,  as  when  in  1889  Governor  Beaver  asked 
for  the  enforcement  of  Article  17  of  the  Constitution. 
The  Pennsylvania  machine  has  been  an  adept  in  **  rip- 
per" legislation;  among  striking  examples  of  such 
measures  are  the  following :  An  act  depriving  district 
attorneys  of  the  right  to  challenge  jurors  in  certain 

266 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

cases, ^  an  act  taking  the  power  to  grant  liquor  licenses 
from  the  judiciary  and  giving  it  to  a  state  excise 
board,  an  act  granting  away  water  power  belonging 
to  the  state,  and  a  law  which  gave  final  power  in 
matters  of  assessment  of  property  in  Philadelphia  to 
the  Board  of  Tax  Revision.  In  1905,  the  machine 
politicians  propounded  a  new  constitutional  doctrine 
to  the  effect  that  inasmuch  as  a  majority  of  all  regis- 
tered voters  had  not  voted  for  a  certain  constitutional 
amendment  but  only  a  majority  of  those  actually  voting 
upon  it,  the  legislature  was  not  bound  to  enforce  it. 
As  this  amendment  required  the  personal  registration 
of  voters,  its  enforcement  would  have  touched  a  most 
sensitive  point  of  practical  politics  in  Pennsylvania. 

Interesting  instances  of  ** ripper"  legislation  can  of 
course  be  gathered  from  many  states.  It  is  a  frequent 
practice  of  the  machine,  when  it  fears  the  election  of 
a  hostile  governor,  to  have  the  appointive  power,  or 
a  part  of  it,  transferred  to  the  legislature.  The 
Goebel  law,  which  has  caused  Kentucky  such  endless 
trouble,  is  also  of  this  general  nature,  although  its 
passage  was  due  to  bitter  party  struggles,  rather  than 
to  the  influence  usual  in  such  cases.  It  enacts  that 
the  governor  shall  appoint  the  local  election  officials, 
and  that  the  legislature  shall  canvass  the  election 
returns  without  any  appeal  to  the  courts.     A  most 

*Thi8  act  was  introduced  in  order  to  influence  the  selection 
of  jurors  in  political  trials.  A  few  years  previously,  when  the 
district  attorney  of  Philadelphia  had  been  controlled  by  the 
machine,  the  ofl&ce  had  been  given  additional  powers,  but  now 
that  the  district  attorney  was  independent,  these  powers  were 
removed. 

•   267 


AMERICAN  LEGISLATURES 


ambitious  scheme  of  "ripper"  legislation,  fortunately 
unsuccessful  in  the  end  by  a  narrow  margin,  was  con- 
ceived in  the  Illinois  Senate  in  1903. 

The  favorite  field  of  ** ripper"  legislation  is,  how- 
ever, municipal  government.  By  shifting  adminis- 
trative functions  from  state  boards  to  municipal 
bodies  and  vice  versa,  the  loss  of  power  by  the  organ- 
ization in  any  locality  can  be  neutralized  and  periods 
of  strong  local  opposition  successfully  tided  over.  In 
this  practice  the  politician  always  finds  some  interest 
to  appeal  to.  If  he  desires  to  curtail  the  powers  of  a 
municipality,  he  will  enlist  the  country  members 
against  city  privilege;  and  if  the  dominant  party  in 
the  locality  in  question  happens  to  be  opposed  to  the 
majority  in  the  state,  it  is  easy  to  make  a  party  ques- 
tion of  the  authority  of  municipal  officers.  There  is 
always  a  certain  latent  opposition  between  the  rural 
and  the  urban  representatives,  which  is  played  on 
with  great  success  by  the  boss  and  his  associates.  At 
times  the  virtuous  abhorrence  of  the  country  member 
for  the  vices  of  the  large  town  is  utilized  to  effect 
such  legislation  as  the  Raines  hotel  law,  which  allows 
the  local  machine  to  levy  a  heavy  tribute  on  tolerated 
vice.  The  shifting  of  power  at  will  from  one  gov- 
ernmental organ  to  another  is  especially  useful  in 
''trolley"  and  gas  legislation.  For  when  public  in- 
dignation has  been  aroused  against  some  bold  raid  in 
a  municipal  council,  the  legislature  itself  can  more 
safely  furnish  the  legislation  demanded  by  the  spe- 
cial interests;  or  again  at  times  when  public  energy 
has  spent  itself  in  watching  that  body,  an  act  giving 
ample  powers  to  some  municipal  organ  may  effect  the 

268 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

desired  purpose.  The  ''ripper'*  legislation  in  Penn- 
sylvania included  an  attempt  on  municipal  independ- 
ence, in  the  act/  by  which  the  rightfully  elected 
municipal  officials  of  Pittsburg  who  were  hostile  to 
the  machine  were  coolly  legislated  out  of  office,  and 
the  governor's  appointees  substituted  for  them.  The 
city  of  Pittsburg  therefore  had  successfully  rebelled 
against  its  local  machine  only  to  fall  into  the  hands 
of  the  more  powerful  political  bosses  at  the  state 
capitol.  A  similar  example  of  undue  interference 
with  municipal  law  on  the  part  of  the  legislature,  was 
the  act  of  May  5,  1905,  by  which  the  power  of  the 
mayor  of  Philadelphia  to  appoint  heads  of  depart- 
ments was  curtailed.^  The  bill  was  introduced  so 
late  in  the  session  that  unanimous  consent  was  nec- 
essary to  its  passage,  but  the  control  of  the  machine 
was  so  perfect  that  ''no  objection  was  heard."  Even 
in  Massachusetts  there  has  been  a  strong  tendency  on 
the  part  of  the  legislature  to  extend  the  power  of 

^Act  of  March  7,  1901.  It  abolishes  the  office  of  mayor  in 
cities  of  the  second  class,  and  vests  executive  power  in  the 
*' recorder. ' '  It  was  held  constitutional  by  a  divided  court 
in  Commonwealth  v.  Moyer,  199  Pa.  St.,  534.  The  undisputed 
facts  are  stated  in  the  dissenting  opinion  as  follows:  ''It 
applies  specially  to  the  three  cities  of  Pittsburg,  Allegheny, 
and  Scranton;  it  changes  their  charters;  .  .  .  puts  them 
under  special  provisions;  .  .  .  governs  them  by  a  high  execu- 
tive officer  of  the  commonwealth,  resident  at  Harrisburg;  neces- 
sarily ousting  local  officials  elected  by  the  people,  whose  terms 
had  not  yet  expired. ' ' 

'See  Laws  of  Pennsylvania,  1905,  pp.  390-397, for  the  gov- 
ernor's message  vetoing  similar  bills  but  approving  the  above 
act,  after  citing  Jacob,  Nero,  Charlemagne,  Lincoln,  Pope,  the 
Anabaptists,  etc. 

-    269 


AMERICAN  LEGISLATURES 


state  officials  at  the  expense  of  municipalities.^  The 
city  of  Boston  is  constantly  objecting  to  legislative 
interference,  and  in  1905,  Mayor  Collins  in  vigorous 
terms  vetoed  a  proposal  for  co-operation  of  the  state 
and  city  in  a  certain  improvement.  An  exceedingly 
bold  use  of  ''ripper"  legislation  occurred  in  Michigan 
in  1900.  When  Detroit  had  elected  a  Democratic 
mayor,  one  of  the  city  officials  who  had  failed  of  reap- 
pointment formed  a  triumvirate  with  two  other  local 
politicians  who,  backed  by  the  Governor,  secured  the 
passing  of  a  bill  depriving  the  mayor  of  his  ap- 
pointive power  and  giving  it  to  the  Republican  City 
Council.  Under  this  arrangement  the  triumvirate 
controlled  the  city  and  sought  popularity  by  running 
a  ''wide  open"  town.  When  one  of  the  trio  was 
convicted  of  bank-wrecking,  he  was  released  by  the 
governor  on  parole,  and  another  member  who  had  al- 
ready served  a  term  in  the  penitentiary  was  ap- 
pointed on  the  Board  of  Prison  Control,  presumably 
on  account  of  his  expert  knowledge.  We  can  con- 
template with  some  satisfaction  the  general  house- 
cleaning  which  followed  close  upon  this  remarkable 
era  of  municipal  statesmanship.  As  this  case  shows, 
the  legislature,  although  the  agent  in  effecting  "rip- 
per" legislation,  is  not  always  the  prime  mover.  The 
impulse  very  often  comes  from  defeated  factions  in 
the  localities  in  question,  who  failing  of  election  pro- 


^E.  g.  the  police  boards  of  Boston  and  Fall  Elver.  The 
act  increasing  the  term  of  the  mayor  to  two  years  was  passed 
to  assist  the  Eepublicans  in  Boston,  but  it  resulted  to  the  con- 
trary in  strengthening  the  hold  of  the  Democratic  party. 


270 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

mote  such  legislation  as  will  restore  power  to  them 
through  appointment. 

The  situation  in  Illinois  is  rendered  difficult  by  the 
inveterate  misunderstanding  between  Chicago  and  the 
rest  of  the  state.  The  large  representation  which 
Cook  County  has  in  the  legislature  (over  one-third 
of  the  members)  causes  no  little  jealousy  on  the  part 
of  the  country  districts;  while  Chicago  on  her  part 
is  rather  inclined  to  look  upon  the  country  members 
as  of  small  account.  This  state  of  affairs  in  ordinary 
times  is  very  welcome  to  the  politician  as  it  enables 
him  to  play  off  the  two  sections  of  the  state  against 
each  other.  Nevertheless  in  times  of  real  need  the 
country  districts  have  nobly  come  to  the  rescue  of 
Chicago.  It  was  the  assistance  of  the  country  mem- 
bers and  their  constituencies,  aroused  by  the  reports 
of  legislative  action  in  the  Chicago  papers,  that 
helped  the  citizens  of  Chicago  to  defeat  the  fifty 
years'  franchise  bill  of  1897.  In  1899,  Chicago  ap- 
pealed directly  to  the  people  of  the  state  for  the  de- 
feat of  the  Allen  substitute  bill,  with  the  result  that 
only  two  of  the  sixteen  retiring  senators  who  had  voted 
for  the  Allen  bill  were  reelected,  and  fourteen  of  the 
eighty-two  representatives.  In  Missouri  the  interfer- 
ence of  the  state  politicians  with  municipal  govern- 
ment was  formerly  so  outrageous  that  it  became  one 
of  the  chief  articles  in  Governor  Folk's  program  to 
give  municipal  home  rule  to  St.  Louis,  Kansas  City, 
and  St.  Joseph.  The  only  legislation  effected  in  1905, 
however,  was  to  take  the  appointment  of  the  St. 
Louis  police  out  of  the  hands  of  the  governor  and 
give  it  to  the  mayor  of  that  city. 
-271 


AMERICAN  LEGISLATURES 


It  is  natural  that  in  the  state  of  New  York  there 
should  have  heen  a  close  connection  between  legisla- 
tive politics  and  the  administration  of  the  metropolis. 
Constant  interference  or  *' reform '*  of  the  city  gov- 
ernment began  when  the  Republicans  came  into  power 
in  1857.  Between  that  date  and  1890  eleven  different 
charters  were  enacted  for  New  York  and  the  interests 
of  the  city  became  the  chief  capital  upon  which  state 
politicians  traded.  At  times  the  most  vicious  legis- 
lation against  the  interests  of  the  city  was  promoted 
by  the  New  York  delegation  itself,  who,  faithful  to 
their  profession  as  politicians,  betrayed  the  interests 
which  they  were  supposed  to  represent.  Such  was 
the  case  in  1892,  when  they  supported  the  election  in- 
spector's bill,  the  Foley  excise  bill,  and  the  Central 
Park  speeding  bill,  which  favored  the  sporting  in- 
terests at  the  expense  of  the  rest  of  the  community. 

Though  it  often  happens  that  the  politicians  more 
directly  representing  industrial  interests  and  those 
who  favor  a  lax  police  administration  belong  to  op- 
posing political  parties,  there  is  by  no  means  always  a 
real  opposition  between  them  with  respect  to  this  mat- 
ter. Indeed  it  frequently  happens  that  those  in  con- 
trol of  the  state  machinery  will  help  the  grafters  on 
local  vice  through  the  passage  of  a  certain  kind  of 
**good"  laws.  Virtuous  on  their  face,  these  enactments 
render  the  traffic  in  police  immunity  far  more  profitable 
because  they  are  too  exacting  to  be  actually  enforced 
against  all ;  and  therefore  immunity,  which  under  the 
circumstances  will  be  granted  to  some,  is  sold  at  a 
very  high  figure.  Instances  of  this  kind  of  legislation, 
supported  in  many  cases  by  the  agencies  that  are  really 

272 


THE  PERVERSION  OF  LEGISLATIVE  ACTION 

wishing  and  hoping  for  good  government,  are  un- 
happily very  common.  Through  the  enactment  of 
such  laws  the  party  manager  has  paid  his  debt  to  the 
respectable  element  in  the  community.  He  can  then 
proceed  to  hold  the  law  as  a  club  over  the  middlemen 
of  vice  and  extort  from  them  substantial  contribu- 
tions. The  bosses  of  the  machine  are  therefore  not 
inherently  indisposed  to  favor  ''good  government*' 
legislation.  Among  the  men  whose  names  are  promi- 
nently connected  with  moral  reform  legislation  we 
need  not  be  surprised  to  find  those  of  politicians,  the 
nature  of  whose  actual  alliances  are  too  well  known. 
When,  therefore,  the  cry  of  good  government  is  raised 
by  this  kind  of  politician,  the  real  friends  of  decency 
do  well  to  be  on  their  guard,  for  in  most  cases  what 
the  bosses  desire  will  be  the  creation  of  what  Mr. 
Jerome  calls  an  ** administrative  lie,"  i.  e.,  the  plac- 
ing on  the  statute  books  of  stringent  laws  against 
liquor  and  vice,  the  very  strictness  of  which  is,  how- 
ever, made  the  means  of  extortion  by  the  local  politi- 
cal managers.  It  frequently  happens  that  the  influ- 
ences representing  lax  morality  gain  important  privi- 
leges from  the  legislature  through  acts  the  full  bear- 
ing of  which  is  not  realized  by  the  members  in  gen- 
eral. This  has  often  been  accomplished  in  connection 
with  so-called  ' '  Breeders '  ' '  legislation.  Thus,  for  in- 
stance, the  breeders'  law  of  1897  in  Missouri,  which 
prohibited  betting  on  horse-races  ''except  on  race- 
tracks," and  which  was  ostensibly  passed  for  the  en- 
couragement of  the  breeding  and  training  of  horses, 
was  signed  by  the  governor  without  a  recognition  of 
its  sinister  purpose.  In  1905,  at  the  very  end  of  the 
18  573 


AMERICAN  LEGISLATURES 


session,  the  New  Hampshire  legislature  passed  a  law 
(Ch.  232)  to  incorporate  the  New  England  Breeders' 
Club,  according  to  which  the  club  is  given  the  right 
to  hold  fairs  and  horse-races,  and  is  permitted  to  fur- 
nish its  own  police;  betting  on  horse-races  is  for- 
bidden, the  penalty,  however,  is  only  the  forfeiture  of 
the  amount  of  the  bet  in  a  civil  action.  The  abuses 
which  may  arise  under  such  lax  legislation  are  ap- 
parent, and  the  people  of  New  Hampshire  were  much 
aroused  about  this  charter,  although  the  administra- 
tion of  the  Club  has  given  assurance  that  no  gambling 
is  to  be  allowed. 


274 


CHAPTER  IX 

PUBLIC  FORCES  INFLUENCING  LEGISLATIVE  ACTION 

It  has  been  shown  in  the  last  chapter  that  legislative 
action  is  frequently  determined  by  influences  of  a  pri- 
vate nature  which  are  exercised  more  or  less  in  secret, 
and  through  methods  that  are  not  in  accord  with  the 
spirit  of  our  institutions.  While  such  influences  are 
by  no  means  everywhere,  nor  always,  in  control,  they 
have  at  certain  times  made  themselves  dominant  in 
nearly  every  one  of  the  commonwealths,  and  their 
recrudescence  is  possible  at  any  time.  In  order  that 
such  sinister  conditions  should  be  avoided  it  is  neces- 
sary that  the  public  sources  of  the  legislative  will 
should  be  developed  and  their  constant  and  normal 
action  facilitated.  The  legislature  itself  originates 
comparatively  few  laws.  Most  of  them  are  suggested 
by  outside  influences,  and  are  taken  over  and  made 
their  own  by  legislators.  Legislatures  indeed  rather 
shun  originality;  they  are  more  inclined  to  copy 
enactments  from  other  states,  and  really  new  depar- 
tures in  legislative  experiments,  original  solutions  of 
legislative  problems,  are  mostly  suggested  by  active 
men  or  organizations  outside  the  legislative  bodies. 
Considering  the  prominence  of  party  politics  in  our 
'275 


AMERICAN  LEGISLATURES 


national  life,  it  would  seem  natural  that  party  action 
should  have  a  determining  influence  in  legislative 
matters.  Quite  the  contrary,  however,  is  true  as  far 
as  actual  legislation  is  concerned.  Party  lines  are  in- 
deed drawn  and  members  are  knowu  as  Republicans, 
Democrats,  etc.;  but  ordinarily  the  party  organiza- 
tion in  a  state  is  merely  a  subsidiary  part  of  the 
national  machinery,  and  represents  no  distinct  policy 
of  state  government  and  legislation.  The  state  plat- 
forms of  the  various  parties  generally  deal  with  na- 
tional questions,  with  patriotic  declarations,  and  vague 
statements  of  principle.  Even  when  they  contain 
planks  referring  to  some  matter  of  merely  local  im'- 
portance,  such  resolves  are  not  always  followed  by 
specific  legislation.  While  the  legislature  is  being 
organized,  its  offices  distributed,  and  the  United 
States  senator  elected,  party  activity  is  indeed  very 
animated.  On  such  questions  as  the  redistricting  of 
the  electorate,  or  the  creation  of  new  local  units  of 
government,  party  discipline  is  also  usually  kept  up, 
but  questions  of  general  legislation  are  more  rarely 
made  a  matter  of  party  difference.^    The  frequency 

*  Thus  in  Illinois  in  1903  there  were  only  two  strictly  party 
votes,  one  on  the  election  of  a  United  States  senator,  the  other 
on  the  formation  of  a  Supreme  Court  district.  Under  Pro- 
fessor A.  L.  Lowell's  criterion  of  considering  a  vote  partisan 
when  nine  tenths  of  the  party  vote  in  a  certain  way,  there 
were  in  the  Iowa  Senate  of  1898,  only  three  party  votes  out 
of  372;  in  the  House,  only  nine  out  of  394.  In  the  Minnesota 
Senate  of  1903,  there  was  no  party  vote;  in  the  House,  one 
out  of  741,  that  one  being  on  the  election  of  the  speaker.  In 
the  Wisconsin  Senate  in  1893,  there  were  three  true  party 
votes  out  of  116  recorded  yea  and  nay  votes;  in  the  House,  ten 

276 


INFLUENCING  LEGISLATIVE  ACTION 

of  unanimous  votes  is  surprising.  It  is  very  usual 
for  more  than  one  half  of  the  votes  in  the  session  to 
be  unanimous.  In  Minnesota,  this  class  of  votes  in 
1903  comprised  more  than  eighty  per  cent,  of  the 
total.  In  states  where  the  organization  is  strong,  the 
mover  of  a  bill  will  usually  be  satisfied  when  he  has 
secured  the  required  number  of  votes  for  his  measure, 
so  that  a  large  number  of  bills  will  be  passed  by  ex- 
actly the  required  constitutional  majority^  and  often 
without  opposition.  The  opposition  can  ordinarily 
muster  a  party  vote  with  greater  ease  than  the  party 
in  power,  both  on  account  of  its  smaller  size,  and  on 
account  of  the  fact  that  its  mission  is  rather  to  criti- 
cize and  delay  than  to  construct.  At  times  when 
state  matters  have  been  given  an  unusual  prominence 
in  the  party  struggle,  party  votes  will  be  more  fre- 
quent, as  was  the  case  during  the  Populist  regime  in 
Kansas.  On  account  of  the  even  balance  between 
parties  in  New  York,  as  well  as  the  importance  of  the 
state  as  a  political  unit,  there  has  been  far  more  strict 
party  voting  in  its  legislature  than  is  the  case  in  other 
states.  The  general  unimportance  of  party  in  ordi- 
nary legislative  matters  is  also  shown  by  the  infre- 
quency  of  party  caucuses  held  to  determine  upon 
specific  legislative  measures.  Such  caucuses  are  as  a 
rule  held  only  when  some  question  of  personal  politics 
is  involved.  The  ordinary  arrangement  of  legislative 
business  in  the  larger  states  rests  as  we  have  already 

out  of  145.  The  general  average  is  somewhat  higher.  See 
A.  L.  Lowell,* 'The  Influence  of  Party  upon  Legislation  in  Eng- 
land and  America."  Eep.  of  the  Am.  Hist.  Assoc,  1901. 
Vol.  I,  321. 

'277 


AMERICAN  LEGISLATURES 


seen  rather  on  bi-partisan  arrangements,  with  an  occa- 
sional use  of  party  discipline  by  the  managers  for 
their  own  purposes. 

The  ease  with  which  governors  belonging  to  a  dif- 
ferent party  from  the  majority  of  the  legislature 
manage  to  get  along  also  indicates  that  party 
is  not  an  essential  factor  in  state  legislative 
and  administrative  work.  Governor  Folk,  in 
carrying  out  his  reform  program,  had  to  place 
his  chief  reliance  upon  the  party  opposed  to 
him;  and  he  actually  received  more  assistance  from 
the  Republican  House  than  from  the  Democratic 
Senate,  which  latter  rejected  his  principal  bill  for  the 
stamping  out  of  bribery.  Governor  Douglas  of 
Massachusetts,  surrounded  by  Republican  state  offi- 
cials and  legislators,  carried  on  a  very  successful  ad- 
ministration. He  maintained  perfectly  harmonious 
relations  with  the  legislature  and  used  the  veto  only 
four  times,  in  three  of  which  instances  he  was  upheld 
by  the  General  Court.  Governor  Toole  of  Montana, 
under  similar  circumstances,  secured  the  passage  of 
most  of  the  measures  in  which  he  was  interested,  al- 
though he  was  forced  to  veto  a  number  of  legislative 
bills.  Governor  Johnson  of  Minnesota  also  lived  in 
amity  with  the  legislature  though  representing  the 
opposite  party^^^^^ 

Public  opinion,  which  is  theoretically  the  guide  and 
source  of  legislative  action,  has  in  practice  given  very 
little  attention  to  state  legislatures,  and  has  ordinarily 
allowed  narrower  interests  to  prevail  without  let  or 
hindrance.  But  occasionally  when  it  has  been  aroused 
on  account  of  some  crying  abuse,  or  has  become  in- 

278 


INFLUENCING  LEGISLATIVE  ACTION 

terested  in  some  important  measure,  it  constitutes  for 
a  time  the  predominant  factor  in  legislation.  A  strik- 
ing instance  of  such  public  interest  in  matters  of 
state  policy  is  found  in  the  movement  in  Pennsylvania 
in  1872,  which  led  to  the  calling  of  a  Constitutional 
Convention,  on  account  of  the  public  indignation  at 
the  prevailing  bribery;  or  in  the  formation  of  the 
Law  and  Order  Society  which  secured  for  Philadel- 
phia its  charter,  and  induced  the  legislature  to  pass 
a  high  license  law  in  1887  as  well  as  to  confer  upon 
the  courts  the  power  to  grant  licenses.  In  New  York, 
public  opinion  has  been  active  in  behalf  of  such  meas- 
ures as  the  franchise  tax  law  and  the  tenement  law, 
which  latter  was  passed  against  the  onslaughts  of  a 
most  powerful  lobby  representing  builders,  real  estate 
owners,  and  material  men.  The  manner  in  which 
public  opinion  in  Illinois  defeated  the  machinations 
of  the  street  railway  interests  of  Chicago  has  already 
been  referred  to.  Public  opinion  in  such  cases  be- 
comes articulate  through  newspaper  propaganda,  and 
through  the  organization  of  various  reform  associa- 
tions. While  the  special  interests,  of  course,  always 
provide  themselves  with  newspaper  organs,  such  affil- 
iations are  soon  discovered  by  the  public  ajid  the  edito- 
rial column  of  such  papers  loses  its  influence.  Some 
of  the  most  gratifying  defeats  of  machine  manipula- 
tions in  legislatures  have  been  brought  about  by  the 
hue  and  cry  raised  by  the  independent  metropolitan 
press.  The  country  papers  on  the  other  hand  are 
generally  less  efficient,  being  more  dependent  upon 
large  advertising  contracts  from  patent  medicine 
frauds  and  other  exploiters  of  the  public. 
'  279 


AMERICAN  LEGISLATURES 


Reform  organizations  have  appeared  in  a  multitude 
of  forms  and  have  worked  with  varying  degrees  of 
success.  An  interesting  example  of  an  organization 
which  follows  out  the  purpose  of  raising  the  general 
quality  of  legislative  representatives  and  enactments 
is  the  Legislative  Voters'  League  of  Chicago.  In  its 
bulletins  it  gives  a  brief  account  of  the  actual  work 
performed  and  the  measures  favored  by  the  repre- 
sentatives who  are  candidates  for  re-election.  Its 
elforts  seem  to  have  had  a  salutary  influence  upon  the 
legislature.  Thus,  for  instance,  the  payroll  stuffing 
which  it  specially  attacked  has  almost  entirely  disap- 
peared. In  1903,  the  legislature  had  393  employees 
who  were  paid  $110,000;  in  1905,  it  managed  to  get 
along  with  211  and  a  payroll  of  $65,000.  The  dan- 
gers which  beset  reform  activity  are  of  many  kinds. 
Reformers  are  ordinarily  somewhat  too  independent 
and  individualistic.  They  find  it  difficult  to  work 
together,  and  their  factional,  contradictory  appeals 
confuse  and  irritate  the  legislators.  Moreover,  the 
ordinary  legislator  will  listen  to  the  business  man  or 
the  lobbyist  who  represents  some  concrete  interest 
affected  by  legislation ;  he  will  also  perforce  listen  to 
the  representatives  of  organized  reform,  who  may 
command  a  powerful  array  of  votes;  but  the  indi- 
vidual reformer  is  an  unwelcome  guest  in  the  legisla- 
tive halls.  The  interest  which  he  represents  is  too 
vague  and  indefinite  for  the  legislative  mind.  He  is 
looked  upon  as  a  bothersome  intruder,  who  takes  it 
upon  himself  to  teach  the  legislature  its  duty  and  to 
show  it  the  way  to  proper  legislation.  The  old  Ameri- 
can adage  about  minding  one's  own  business  is  used 

280 


INFLUENCING  LEGISLATIVE  ACTION 

against  such  men.  In  fact  it  is  used  unjustly  and 
excessively,  and  it  accounts  for  much  of  the  abuse  in 
our  legislative  life.  The  man  who  has  some  business 
to  represent,  no  matter  how  disreputable,  whether  he 
has  money  invested  in  a  patent  medicine  or  in  a  race- 
track, has,  in  the  minds  of  many  legislators,  a  better 
standing  before  them  than  he  who  comes  to  argue  for 
the  rights  and  interests  of  the  public.  Reformers 
are,  however,  often  too  impatient,  too  uncompromis- 
ing, to  be  successful  in  urging  their  point  of  view. 
The  reform  legislation  in  Illinois  in  1905  was  at 
times  seriously  endangered  by  the  zeal  and  impatience 
of  certain  enthusiasts.^  But  the  reform  movement 
was  so  strong  that  even  in  the  face  of  some  indiscre- 
tions, the  principal  measures  advocated  were  passed, 
though  in  a  somewhat  modified  form. 

The  manner  in  which  popular  sympathy  may  at 
times  gather  around  radical  and  unpractical  measures 
is  exemplified  by  the  Kansas  state  refinery  bill  of 
1905.  The  legislature  was  at  first  opposed  to  the 
governor's  recommendation  on  this  head;  but  consid- 
ering the  public  indignation  against  the  Standard  Oil 
Company,  the  independent  oil  producers  concluded 
that  it  would  be  best  to  utilize  this  enthusiasm,  and 
under  the  wing  of  the  refinery  bill  to  carry  through 
other  important  legislation.  The  bills  thus  appended 
to  the  main  measure  provided  for  the  fixing  of  a 
maximum  freight  rate,  declared  pipe  lines  to  be  com- 

*When  one  of  them  reiterated  with  loud  voice  and  vigorous 
gesture  before  Governor  Deneen,  "We  won't  accept  bill  121," 
the  Governor  remarked  quietly,  "I  hope  you  won't  veto  it  be- 
fore it  is  passed." 

'281 


AMERICAN  LEGISLATURES 


mon  carriers,  and  forbade  discrimination  in  prices 
for  commodities.  Though  the  speaker  of  the  House 
was  opposed  to  the  original  bill,  which  he  considered 
unconstitutional,  it  was  passed  and  carried  in  its 
train  the  other  measures.  This  action  shows  clearly 
the  character  which  popular  interference  will  at  times 
assume.  An  extreme  measure,  soon  declared  uncon- 
stitutional by  the  Supreme  Court,  was  passed  be- 
cause it  monopolized  the  popular  interest;  the  biUs 
following  in  its  wake,  for  which  the  public  cared 
little,  were  measures  of  real  and  permanent  import- 
ance. 

Legislative  organizations  will  be  careful  not  to  defy 
public  opinion,  however  ready  they  may  be  to  defeat 
it.  But  when  the  organization  forces  begin  to  take 
an  interest  in  a  popular  bill,  its  friends  have  need  of 
the  greatest  caution  and  of  unfailing  watchfulness. 
Otherwise,  while  indeed  a  measure  outwardly  corre- 
sponding to  the  public  demand  will  be  passed,  there 
will  be  attached  to  it  brief  and  apparently  unimport- 
ant amendments,  which,  however,  in  the  end  may  re- 
sult in  the  complete  defeat  of  the  purpose  of  the  Bill. 
The  Elkins  act  for  the  improvement  and  better  en- 
forcement of  the  Sherman  anti-trust  law  contains  a 
short  provision  which  declares  that  infringements 
shall  be  punished  by  fine  and  not  by  imprisonment. 
The  attorney-general  very  soon  discovered  that  the 
law  could  not  be  enforced  through  the  imposition  of 
small  fines  upon  persons  drawing  immense  pecuniary 
benefits  from  the  system  of  rebates,  and  he  instructed 
his  assistants  to  proceed  under  the  original  law.  Dur- 
ing the  entire  struggle  over  the  tenement  house  bill 

282 


INFLUENCING  LEGISLATIVE  ACTION 

in  New  York  and  for  years  after  it  had  become  law, 
constant  attempts  were  made  to  annihilate  its  effi- 
ciency by  amendments.  A  favorite  method  used  for 
the  purpose  of  defeating  an  unwelcome  law  is  to  at- 
tach to  it  an  amendment  submitting  the  enactment 
to  the  people  at  the  "next  general  election,  and  pro- 
viding that  the  law  shall  go  into  effect  if  a  majority 
of  all  the  electors  voting  at  that  time  shall  accept  it. 

The  articulateness  of  public  opinion  becomes  clear- 
est and  most  convincing  in  commonwealths  where  the 
governorship  is  held  by  a  man  who  is  in  close  touch 
with  the  desires  and  needs  of  the  people  in  general, 
and  whom  the  various  organizations  favoring  reform 
may  trust  to  give  authoritative  .representation  to  their 
views  and  reasonable  demands.  The  importance  of 
the  reform  governors  is  based  not  so  much  upon  their 
position  as  heads  of  the  administration,  but  upon  their 
character  as  the  authoritative  interpreters  of  the  pub- 
lic will.  Their  position  gives  them  a  greater  sense  of 
responsibility  and  a  more  complete  view  of  the  situa- 
tion than  is  found  in  the  ordinary  lay  reformer. 
While  keenly  alive  to  the  interests  and  wishes  of  the 
people  and  desirous  of  doing  away  with  abuses,  they 
are  apt  to  choose  their  ground  with  care  and  do  not 
attempt  the  unattainable. 

But  the  governor,  as  the  head  of  the  administrative 
departments  and  of  the  state  government  in  general, 
also  has  a  growing  influence  over  legislative  action. 
As  governmental  relations  become  more  complicated 
and  such  intricate  economic  pursuits  as  banking, 
transportation,  and  insurance  have  to  be  dealt  with 
by  the  legislatures,  they  more  and  more  feel  the  need 
'  283 


AMERICAN  LEGISLATURES 


of  expert  guidance,  and  are  willing  to  listen  to  the 
governor,  the  state  officials,  and  the  various  boards 
and  commissions,  in  matters  of  legislative  policy  and 
detail.  In  some  cases  this  tendency  has  been  so 
strong  as  to  amount  to  a  virtual  abdication  of  legis- 
lative authority.  At  the  end  of  the  last  session  of 
the  California  legislature,  the  governor  was  left  with 
a  mass  of  hastily  enacted  measures  on  his  hands. 
The  legislature  had  opened  the  flood  gates  wide,  with 
the  avowed  understanding  that  the  governor  would 
carefully  sift  and  examine  the  product  before  giving 
his  assent.  It  went  so  far  as  to  pass  mutually  con- 
tradictory measures  leaving  it  to  the  governor  to 
choose  between  the  alternatives  or  reject  both.  The 
result  was  that  after  the  legislature  had  adjourned, 
the  real  work  of  legislation  began.  During  the  ten 
days  allowed  by  the  constitution  the  governor  and  his 
entire  force  of  assistants  worked  day  and  night. 
Hearings,  necessarily  brief,  were  accorded  to  per- 
sons interested  in  proposed  measures.  The  whole 
volume  of  legislation  was  carefully  gone  over,  before 
the  governor  decided  which  of  the  enacted  measures 
were  to  become  law.  Mr.  Roosevelt,  while  governor 
of  New  York,  took  a  very  decided  position  of  leader- 
ship. One  of  the  measures  which  owe  their  existence 
chiefly  to  him  and  which  he  carried  through  in  the 
face  of  an  almost  overwhelming  opposition  of  lobby 
and  representatives,  is  the  franchise  tax  law  of  1899. 
So  solicitous  was  he  for  the  success  of  this  measure 
that  he  called  a  special  session  to  correct  certain  flaws 
in  its  wording  that  had  been  overlooked.  After  a 
long  and  severe  legal  struggle,  the  law  was  finally 

284 


INFLUENCING  LEGISLATIVE  ACTION 

declared  constitutional  by  the  United  States  Supreme 
Court  in  1905.  Mr.  Odell,  while  governor,  especially 
during  his  first  administration,  exercised  a  powerful 
influence  over  the  legislature.  His  message  of  1901 
was  practically  taken  as  a  legislative  program  and 
most  of  his  recommendations  were  embodied  in  legis- 
lative enactments.  But  during  the  second  term  .he 
was  not  so  successful,  failing  in  some  of  the  measures 
which  he  valued  most,  such  as  the  recording  tax  on 
mortgages,  and  the  canal  legislation.^  Governor  Crane 
of  Massachusetts  was  a  true  leader  in  legislative  mat- 
ters. His  most  signal  victory  was  the  veto  of  the 
Boston  subway  bill  in  1901 ;  after  his  veto  the  oppo- 
sition to  the  bill  increased  by  ninety  votes.  Similar 
instances  of  leadership  could  be  multiplied,  and  they 
are  indeed  a  symptom  of  a  healthy  development  in 
our  political  system.  A  position  with  such  oppor- 
tunities as  the  governorship  could  not  remain  an 
ornamental  sinecure,  but  the  possibilities  for  public 
service  which  it  holds  within  it  had  to  be  utilized. 
It  is  often  attempted  to  disparage  the  influence  of 
active  governors  by  stigmatizing  them  as  bosses  and 
insinuating  that  they  are  no  better  than  the  men 
who,  through  secret  traffic  in  corruption,  gain 
power  without  public  confidence.  But  where  a 
governor  effectively  organizes  his  own  followers, 
on  the  basis  of  the  public  principles  for  which  he 
stands,  the  headship  of  such  an  organization,  the 
public  leadership  which  it  implies,  must  not  be  con- 

*  Mr.  Odell 's  acceptance  of  the  chairmanship  of  the  State 
Central  Committee  was  regarded  as  incompatible  with  the  duties 
of  a  governor,  and  his  legitimate  influence  declined. 

-285 


AMERICAN  LEGISLATURES 


founded  with  the  subterranean  work  of  a  corrupt 
political  machine. 

Among  the  most  striking  developments  of  the  last 
decade  or  two,  is  the  growth  of  expert  commissions 
and  boards  in  the  state  governments.  In  many  com- 
monwealths these  organs  of  the  administration  are 
the  direct  descendants  of  legislative  committees. 
Where  there  was  originally  a  visiting  committee  for 
the  state  institutions,  there  will  now  generally  be  a 
Board  of  Control,  though  a  visiting  committee  with 
limited  functions  may  also  still  exist.  The  examining 
of  banks  was  also  originally  performed,  in  a  most 
superficial  manner  to  be  sure,  by  legislative  com- 
mittees. Before  establishing  a  commission,  the  legis- 
lature has  usually  become  acquainted  with  the  need 
of  administrative  expansion  along  a  particular  line 
through  the  work  of  one  or  several  of  its  committees. 
But  while  not  all  commissions  or  boards  are  formed 
in  this  manner,  they  all  have  an  important  connection 
with  and  bearing  upon  legislation.  They  are  ordi- 
narily themselves  intrusted  with  a  large  power  of  leg- 
islation by  ordinance.  Thus  the  insurance  commis- 
sioners are  often  empowered  to  fix  the  wording  of 
the  standard  policy,  and  to  make  other  important 
regulations.  The  legislature,  moreover,  relies  upon 
these  organs  of  government  for  information  and  ad- 
vice concerning  the  part  of  the  administration  under 
their  control.  Laws  affecting  a  commission  are  fre- 
quently drafted  by  itself  and  introduced  in  its  behalf 
by  some  member.  The  times  are  over  when  a  mem- 
ber lays  himself  open  to  contempt  by  admitting  that 
a  certain  measure  favored  by  him  comes  from  the 

286 


INFLUENCING  LEGISLATIVE  ACTION 

Executive.^  In  matters  affecting  the  difficult  rela- 
tions of  manufacturing  industries,  railways,  banks 
and  other  credit  institutions,  taxation,  and  public  ser- 
vice, expert  authority  is  becoming  more  and  more 
prominent  in  our  legislative  affairs,  and  is  listened 
to  with  respect  by  our  legislative  bodies. 

Among  the  expert  agencies  which  influence  legis- 
lation under  the  American  system,  the  legal  profes- 
sion has  long  occupied  a  position  of  great  promi- 
nence. The  prejudice  against  lawyers  which  in  many 
of  the  colonies  led  to  the  adoption  of  laws  excluding 
them  from  membership  in  the  legislature  has  given 
way,2  and  lawyers  have  long  since  become  the  most 
influential  leaders  in  our  national  and  local  legisla- 
tive assemblies.  The  peculiar  American  view  of  the 
character  of  a  written  constitution  as  an  organic  act 
which  is  interpreted,  applied,  and  enforced  by  the 
courts,  has  emphasized  the  legal  aspect  of  institutions. 
During  the  larger  part  of  our  national  history, 
hitherto,  lawyers  were  in  all  respects  the  natural 
leaders  of  the  people.  In  the  earlier  days,  they  alone 
were  trained  to  speak  on  public  affairs,  they  alone 
had  the  necessary  all  around  acquaintance  with  laws 
and  political  methods.  But  at  present  the  impression 
cannot  be  avoided  that  the  influence  of  the  lawyer  in 

^  In  1905,  the  dairy  and  food  commissioner  of  Wisconsin 
introduced  eighteen  separate  measures  for  the  regulation  of 
various  food  industries.  He  avoided  combining  them  into  one 
measure,  in  order  to  break  up  the  inevitable  opposition  of 
special  interests. 

2  Although,  in  1847,  a  similar  clause  was  strongly  advocated 
in  the  Ehode  Island  Constitutional  Convention. 

.287 


AMERICAN  LEGISLATURES 


politics  is  on  the  wane.  A  statistical  study  of  the 
personnel  of  the  legislatures  reveals  a  decline  in  the 
percentage  of  lawyers.  In  the  United  States  Senate, 
the  percentage  decreased  from  eighty-one  per  cent,  in 
the  Fiftieth  Congress,  to  seventy  per  cent,  in  the 
Fifty-eighth;  and  in  the  House,  from  sixty-nine  per 
cent,  to  fifty-six  per  cent,  in  the  same  period.  In  the 
states  an  even  greater  decline  of  percentages  is  to  be 
observed.  The  actual  loss  of  influence  of  the  legal 
profession,  which  is  even  larger  than  these  percent- 
ages indicate,  is  due,  however,  not  so  much  to  this 
reduction  in  numbers,  as  to  the  change  of  temper 
which  has  come  over  our  public  affairs.  Although  the 
United  States  Senate  still  listens  to  extended  consti- 
tutional arguments,  the  discussions  of  other  legisla- 
tive bodies  are  devoted  far  less  to  legal  considerations 
than  they  were  in  former  years.  In  fact,  some  of  the 
legislatures  have  become  impatient  of  legal  argu- 
ments, and  frequently  pass  laws  regardless  of  consti- 
tutional objections,  throwing  the  burden  of  determin- 
ing the  cogency  of  the  latter  entirely  upon  the  su- 
preme courts.  The  differentiation  of  the  professional 
politician  and  the  power  which  he  has  acquired 
through  organization  and  machinery,  has  also  reduced 
the  influence  of  lawyers.  While  lawyers  as  a  profes- 
sion are  somewhat  narrow  and  over-conservative  in 
legislative  action,  the  change  from  legal  to  commercial 
methods  of  leadership  has  brought  about  many  un- 
fortunate results.  However,  lawyers  will  always  be 
sure  of  a  substantial  influence  as  long  as  our  system 
lasts.  In  the  state  legislatures  they  compose  the  im- 
portant judiciary  committee,  to  which  all  changes  in 

288 


INFLUENCING  LEGISLATIVE  ACTION 

existing  laws  are  submitted.  The  training  acquired  by- 
lawyers  through  the  practice  at  the  bar  is  of  great 
advantage  in  a  legislative  career;  and  the  leaders  of 
the  houses,  the  speaker  and  the  chairmen  of  most 
prominent  committees,  are  usually  lawyers.  Though 
not  to  the  same  degree  as  formerly,  lawyers  still  con- 
stitute the  most  representative  profession  in  the  com- 
munity. In  their  practice  they  come  in  contact  with 
all  classes  and  conditions  in  our  social  and  economic 
life,  and  they  have  unequaled  opportunities  of  ob- 
serving the  workings  of  law.  So,  while  a  government 
entirely  carried  on  by  lawyers  would  be  extremely 
undesirable,  a  republic  resting  upon  a  written  con- 
stitution and  free  from  a  dominating  caste,  can 
hardly  be  conceived  of  without  considerable  promi- 
nence being  accorded  in  public  affairs  to  the  profes- 
sion of  law. 

While  the  authority  of  administrative  and  of  legal 
experience  is  openly  present  and  active  in  our  legis- 
latures, the  authority  of  the  experience  of  large  indus- 
trial and  commercial  enterprises  is  not  so  directly 
exercised.  While  the  legislatures  of  our  states  contain 
farmers,  lawyers,  physicians,  merchants,  and  real  es- 
tate agents,  one  will  look  in  vain  for  officers  or  man- 
agers of  large  industries  or  corporations.  On  the  one 
hand,  such  men  are  not  considered  popular  candi- 
dates ;  on  the  other,  their  business  interests  are  so  en- 
grossing that  they  lack  the  time  for  public  service. 
So  they  are  practically  excluded  by  prevailing  con- 
ditions from  directly  assisting  the  state  by  their 
valuable  experience.  Their  only  contact  with  the  leg- 
islatures is  through  the  lobby  and  through  committee 
-289 


AMERICAN  LEGISLATURES 


hearings.  It  may  be  suggested  in  passing  that  all 
this  would  be  changed,  could  we  develop  a  system  of 
open  representation  of  interests,  in  which  the  arrange- 
ment of  our  institutions  would  correspond  more 
directly  to  the  organization  of  economic  life  than  is 
the  case  with  our  present  individualistic  system. 
Each  great  interest  would  then  be  anxious  to  be  rep- 
resented by  its  most  experienced  and  able  men;  and 
an  Assembly  composed  of  the  select  representatives 
of  the  industries,  the  financial  corporations,  trans- 
portation, commerce,  labor,  education,  etc.,  would  oc- 
cupy a  different  plane  from  so  many  of  the  present 
legislatures  in  which  practical  politicians  who  repre- 
sent only  their  lessors  play  a  dominant  part.  In  cer- 
tain respects  our  legislatures  are  indeed  representa- 
tive enough;  they  are  composed  of  a  fair  average  of 
men  in  the  various  walks  of  life.  But  they  are  indica- 
tive rather  of  that  average— a  somewhat  indifferent 
mean— than  of  great  ability  and  experience  in  social 
and  economic  life.  Unfortunately  the  various  inter- 
ests whose  power  is  actually  controlling  are  generally 
not  represented  at  all  in  an  open  and  acknowledged 
manner.  They  therefore  use  indirect  means  of  exert- 
ing their  influence  to  the  endless  harm  of  our  political 
system.^ 

In  states  where  committee  hearings  have  not  been 
reduced  to  a  mere  formality  for  recording  the  will  of 
the  organization,  legislators  are  afforded  the  oppor- 

*  The  system  of  representation  of  interests,  while  in  use  in 
connection  with  advisory  councils,  has  not  yet  been  adapted 
anywhere  to  a  general  electorate  and  a  legislature  sharing 
sovereign  power. 

290 


INFLUENCING  LEGISLATIVE  ACTION 

tunity  of  obtaining  valuable  information  from  the 
various  representatives  of  interests  who  appear  before 
committees.  Such  representation,  which  is  also  indis- 
criminately called  lobbying,  should  be  carefully  dis- 
tinguished from  the  use  of  secret  and  personal  influ- 
ence which  rightly  goes  by  that  name.  The  fullest 
encouragement  should  be  given  all  interests  affected 
by  proposed  legislation  to  make  themselves  heard  be- 
fore the  legislature.  Open  argument  before  a  com- 
mittee or  before  the  legislature  itself,  or  the  written 
presentation  of  facts  and  of  conditions  is  of  course  in 
every  way  perfectly  legal  and  regular.  Compensation 
for  such  services  can  be  legally  recovered,  and  con- 
tracts for  such  payment  have  a  standing  before  the 
courts.  The  law  is  clearly  stated  by  the  Supreme 
Court :  ^  '  *  All  persons  whose  interests  may  in  any  way 
be  affected  by  any  public  or  private  act  of  the  legis- 
lature have  an  undoubted  right  to  urge  their  claims 
and  arguments  either  in  person  or  by  counsel  pro- 
fessing to  act  for  them  before  legislative  committees 
as  well  as  before  courts  of  justice.  But  where  per- 
sons act  as  counsel  or  agents  or  in  any  representative 
capacity,  it  is  due  to  those  before  whom  they  plead 
or  solicit  that  they  should  honestly  appear  in  their 
true  characters,  so  that  their  arguments  and  repre- 
sentations, open  and  candidly  made,  may  receive  their 
just  weight  and  consideration.  A  hired  advocate  or 
agent  assuming  to  act  in  a  different  character  is  prac- 
ticing fraud  and  deception  on  the  legislature.'^  In 
Trist  V.  Child,  88  U.  S.,  441,  Justice  Swayne  said: 
'  *  Services  which  are  intended  to  reach  only  the  reason 
^  Marshall  v.  B.  &  O.  Ey.  Co.,  16  Howard,  314. 
'291 


AMERICAN  LEGISLATURES 


of  those  sought  to  be  influenced  rest  on  the  same  prin- 
ciples of  ethics  as  professional  services  and  are  no 
more  exceptionable.  They  include  drafting  the  peti- 
tion which  sets  forth  the  claim,  attending  to  the  tak- 
ing of  testimony,  collecting  facts,  preparing  argu- 
ments and  submitting  them  orally  or  in  writing  to  a 
committee,  and  other  services  of  a  like  character; 
but  such  services  are  separated  by  a  broad  line  of 
demarcation  from  personal  solicitation,  and  though 
compensation  can  be  recovered  for  them  when  they 
stand  alone,  yet  when  they  are  blended  and  confused 
with  those  which  are  forbidden,  the  whole  is  a  unit 
and  indivisible,  and  that  which  is  bad  destroys  the 
good."  Any  services  implying  personal  solicitation 
or  any  underhanded  influence,  therefore,  cannot  be 
made  the  ba^is  of  an  action  for  fees  or  remuneration, 
and  a  lobbyist  cannot  recover  in  a  court  of  law  com- 
pensation for  his  services.  In  the  great  financial 
centers  like  New  York,  a  practice  has  grown  up  which, 
while  formally  legal,  carries  with  it  a  great  tempta- 
tion to  employ  corrupt  means.  Firms  of  lawyers  will 
undertake  to  draft  a  bill  for  a  certain  purpose,  have 
it  introduced,  watch  its  progress,  argue  it  before  com- 
mittees, prepare  written  statements,  and  finally  after 
it  has  been  passed  defend  its  constitutionality,  which 
they  guarantee.  The  remuneration  paid  for  this  ser- 
vice is  at  times  exceedingly  high,  fees  of  $100,000 
being  of  not  unusual  occurrence.  As  the  fees  are  con- 
tingent upon  the  passage  and  final  validity  of  the 
law,  it  is  apparent  that  they  constitute  an  induce- 
ment to  use  methods  which  are  not  strictly  profes- 
sional.   In  fact,  under  the  guise  of  legal  representa- 

292 


INFLUENCING  LEGISLATIVE  ACTION 

tion  compensated  by  regular  fees,  some  of  the  most 
objectionable  lobbying  is  carried  on. 

During  recent  years,  many  legislatures  have  en- 
acted laws  and  adopted  rules  designed  to  curb  the 
evil  of  lobbying  and  to  give  a  recognized  status  to 
proper  representation  of  interests.^  In  some  states 
the  radical  means  has  been  adopted  of  declaring  the 
attempt  improperly  to  influence  legislation  a  felony.^ 
Many  other  states  punish  the  corrupt  solicitation  of 
legislators  by  fine  or  imprisonment,  or  both.  On  ac- 
count of  the  secret  nature  of  the  offense,  convictions 
are,  however,  extremely  rare,  and  the  threatened  pun- 
ishment is  in  itself  not  a  sufficient  means  to  prevent 
the  activities  of  the  lobby.  In  some  states  it  has  been 
enacted  that  in  a  trial  for  legislative  bribery,  a  wit- 
ness shall  not  be  excused  from  testifying  on  the 
ground  of  self-incrimination.^  This  refers,  however, 
only  to  cases  where  bribery  is  directly  charged.  Un- 
der the  rules  of  many  legislatures  the  privilege  of 
admission  to  the  floor  is  restricted  so  as  to  exclude 
lobbyists.  But  these  rules  are  not  strictly  enforced, 
except  in  Massachusetts,  where  the  dignity  and  de- 
corum of  the  General  Court  has  been  much  increased 
by  the  rigid  exclusion  of  unauthorized  persons.  In 
the  states  of  Massachusetts,  Maryland,  and  Wisconsin 

*For  a  digest  of  the  legislation,  see  Schaffner,  ''Lobbying,*' 
''Wisconsin  Comparative  Legisl.  Bulletin  No.  2." 

'Utah,  Tennessee,  Oregon,  Montana,  Georgia,  Arizona.  The 
constitution  of  California  declares  lobbying  a  felony,  but  there 
has  been  no  legislation  to  carry  out  this  provision. 

'Arizona,  Montana,  Pennsylvania,  Washington.  Governor 
Folk  favored  such  legislation  in  Missouri. 

*  293 


AMERICAN  LEGISLATURES 


the  attempt  has  been  made  to  regulate  the  status  and 
the  activities  of  legislative  counsel  or  agents.  The  main 
provisions  of  the  laws  of  these  states  on  the  subject 
are  as  follows : 

Persons  employed  to  act  as  counsel  or  agent  to  pro- 
mote or  oppose  any  legislation  affecting  the  pecuniary 
interests  of  any  individual,  association,  or  corpora- 
tion as  distinct  from  those  of  the  whole  people  of  the 
state  are  to  be  registered  within  one  week  after  em- 
ployment. The  secretary  of  state  (in  Massachusetts, 
the  sergeant-at-arms)  is  to  keep  two  dockets:  the  one- 
for  legislative  counsel  before  committees,  to  contain 
the  names  of  counsel  or  persons  employed  to  appear 
at  public  hearings  before  committees  of  the  legislature 
for  the  purpose  of  making  arguments  or  examining 
witnesses  and  also  the  names  of  any  regular  legal 
counsel  who  act  or  advise  in  relation  to  legislation; 
the  other  for  legislative  agents  employed  in  connec- 
tion with  any  legislation.  The  dockets  are  to  be 
public  records,  open  to  the  inspection  of  any  citizen, 
and  are  to  contain  the  names  of  employers  and  of 
counsel  and  agents,  with  addresses,  occupation,  date 
and  length  of  employment,  and  the  subjects  of  legis- 
lation to  which  the  employment  relates.  All  agents 
and  counsel  are  to  be  registered  before  acting.  Em- 
ployment for  compensation  contingent  upon  success  is 
not  permitted.  Legislative  counsel  not  also  entered 
on  the  agents'  docket  are  limited  to  appearing  before 
committees  and  to  giving  legal  advice.  Counsel  and 
af?ents  are  to  file  written  authorization  to  act.  Within 
thirty  days  after  final  adjournment  of  the  legislature, 
every  person,  corporation,  or  association  employing 

294 


INFLUENCING  LEGISLATIVE  ACTION 

legislative  agents  or  counsel  shall  file  a  sworn  state- 
ment of  expenses  with  the  secretary  of  state.  Munic- 
ipalities and  other  public  corporations,  are  exempt 
from  these  provisions.  In  Wisconsin,  a  law  of  1905 
specifically  makes  it  unlawful  for  any  legislative 
counsel  or  agent  to  attempt  to  influence  any  legislator 
personally  and  directly  otherwise  than  by  appearing 
before  the  regular  committees,  or  by  newspaper  pub- 
lications, or  by  public  addresses,  or  by  written  or 
printed  statements,  arguments,  or  briefs  delivered  to 
each  member  of  the  legislature. 

A  most  effective  method  of  dealing  with  lobbying 
would  be  found  could  the  members  of  the  legislature 
be  made  independent  of  the  courtesies  of  the  lobby- 
ists. These  persons,  often  highly  trained  and  well 
informed,  are  able  to  render  themselves  exceedingly 
useful,  as  well  as  agreeable,  to  legislative  members. 
Every  new  member  desires  to  make  the  impression 
of  accomplishing  something  for  his  constituents.  He 
has  certain  measures  which  he  wishes  to  bring  for- 
ward. Totally  unacquainted  with  the  customs  and 
procedure  of  the  House,  unfamiliar  with  the  general 
nature  of  legislative  life,  he  is  at  a  loss  what  steps  to 
take,  and  is  practically  forced  to  seek  assistance  some- 
where. His  fellow  members  are  busy  with  their  own 
measures  and  affairs,  his  salary  is  not  sufficient  to 
enable  him  to  engage  the  expert  advice  of  counsel. 
When  he  is  befriended  by  the  gentlemen  of  the  lobby, 
who  explain  to  him  the  procedure  of  the  legislature 
and  provide  him  with  the  material  he  needs,  he  is 
apt  to  accept  their  assistance  and  thus  come  under 
obligations  to  them.    It  is  at  this  point  that  a  really 

295 


AMERICAN  LEGISLATURES 


far-reaching  reform  in  our  legislative  life  can  be  ef- 
fected by  the  use  of  the  right  methods.  The  ex- 
periment has  been  made  in  some  states,  notably  in 
Wisconsin.  Some  years  ago,  the  legislature  of  that 
state  voted  a  small  appropriation  for  a  legislative 
reference  library,  and  a  man  who  had  carefully 
studied  history,  economics,  and  politics  was  put  in 
charge.  With  a  small  expenditure  of  money  he  rap- 
idly gathered  a  valuable  collection  of  reports,  bills, 
and  laws,— catalogued  and  indexed  so  as  to  be  at  all 
times  readily  available.  When  the  legislature  con- 
vened he  was  ready  to  give  every  legislator  impartial 
service  and  reliable  information.  No  matter  what 
subject  a  member  might  be  interested  in,  or  what  bill 
he  might  be  desirous  of  introducing  or  combating, 
he  need  not  be  at  loss  for  information  as  to  what 
other  states  had  done,  how  such  legislative  experi- 
ments had  succeeded,  and  how  to  frame  his  own  pro- 
posals. Bills  were  drafted  for  members  at  their  re- 
quest and  they  were  given  hints  on  important  points 
of  practice,  and  even  arguments  were  prepared  for 
them  if  they  so  desired.  Unwearied  service,  universal 
helpfulness,  impartial  and  tactful  dealing  with  any 
public  question  brought  up,  enabled  the  expert  to 
give  the  members  exactly  what  they  needed,  to  fur- 
nish them  a  place  where  they  could  go  in  the  fullest 
confidence  that  the  best  sort  of  information  and 
assistance  which  any  effort  could  secure  would  be 
supplied  to  them.  The  result  has  been  most  gratify- 
ing. Already  long  before  the  session  begins,  inquiries 
commence  to  pour  in,  asking  for  information  con- 
cerning legislative  precedents,  conditions  in  this  and 

296 


INFLUENCING  LEGISLATIVE  ACTION 

other  states,  the  feasibility  and  constitutionality  of 
laws,  etc.  Throughout  the  session  the  expert  and  all 
his  assistants  are  working  at  red  heat,  keeping  abreast 
with  the  endless  and  exacting  demands  made  upon 
them.  The  members  of  the  legislature,  having  an 
unpolluted  source  of  information  at  their  command, 
gain  self-reliance  and  confidence,  they  are  able  to 
meet  the  pleader  for  special  interests  with  strong 
arguments  drawn  from  their  independent  armory. 
Some  of  the  experienced  legislative  counsel  who  ap- 
peared before  this  legislature,  declared  they  had 
never  come  before  a  body  of  men  so  well  informed  and 
so  keen  in  their  insight,  and  yet  no  more  than  good 
average  representatives  of  the  people  of  the  state. 
Moreover,  seeing  the  bearing  of  the  questions  with 
which  they  were  dealing,  not  confused  by  half-under- 
stood arguments,  the  members  have  taken  an  in- 
creased interest  in  the  work  before  them. 

The  idea  of  a  legislative  laboratory  and  clearing- 
house of  information  has  taken  root  in  other  states  as 
well.  California  and  Indiana  have  instituted  similar 
departments,  and  other  commonwealths  have  been 
considering  the  matter.  The  state  of  New  York  has 
long  had  an  efficient  legislative  library  by  which 
valuable  studies  in  comparative  legislation  are  issued. 
The  position  and  work  of  the  legislative  expert  must 
of  course  be  kept  absolutely  free  from  partisan  bias. 
In  the  state  of  Wisconsin,  the  appropriation  for  this 
department  has  been  kept  so  low  that  it  does  not 
afford  an  attraction  for  political  manipulations.  It 
is  necessary  that  this  institution  be  more  than  a  refer- 
ence library.  The  real  work  is  not  done  by  rows  of 
*  297 


AMERICAN  LEGISLATURES 


books  and  card-catalogues,  no  matter  how  well  ar- 
ranged and  useful  in  themselves,  but  by  a  man  who 
can  deal  with  men  and  gain  their  confidence;  who, 
without  a  shred  of  red-tape  or  official  pomposity 
about  him,  is  ready  to  make  himself  the  servant  of  all, 
even  when  their  little  plans  may  strike  him  as  ridicu- 
lous ;  but  who  must  also  have  the  mastery  of  the  sub- 
ject matter  and  of  the  sources  of  information  that 
will  gain  him  the  intellectual  respect  of  the  men  for 
whom  he  toils.  It  may  be  that  in  some  states  corrupt 
methods  are  so  firmly  intrenched  that  no  improve- 
ment can  be  gained  from  such  a  system  of  liberal 
information  and  assistance,  but  in  most  cases  this 
would  seem  a  better  way  to  defeat  the  lobbyist  than 
the  mere  reliance  upon  punitive  statutes.  Wher- 
ever the  right  kind  of  service  can  be  secured  the  tone 
of  the  legislature  and  the  quality  of  the  product  will 
be  improved  without  fail.^ 

^  The  bitter  opposition  of  the  ' '  interests ' '  against  this  re- 
form shows  conclusively  that  they  do  not  want  intelligence 
in  the  legislature.  The  work  of  a  legislative  reference  bureau 
should  not  be  confused  with  the  purposes  suggested  for  the 
' '  people 's  lobby. ' '  The  latter,  if  organized,  would  exercise 
a  general  supervision  over  legislation.  It  would  favor  cer- 
tain measures,  oppose  others,  keep  a  record  of  the  action  of 
individual  legislators,  give  publicity,  etc.  These  matters,  al- 
though desirable  in  themselves,  are  not  included  in  the  func- 
tions of  the  reference  bureau,  which  exists  merely  to  supply 
the  individual  legislator  with  accurate  information,  and  to 
assist  him  in  drafting  bills  and  in  doing  other  legislative 
work. 


298 


*<. 


CHAPTER  X 


THE  LEGISLATIVE  PRODUCT 


The  excessive  number  of  legislative  enactments  an- 
nually produced  in  the  United  States  has  been  the 
subject  of  much  severe  comment ;  yet,  when  the  organ- 
ization of  legislative  bodies  is  considered,  this  over- 
activity seems  but  natural.  All  surrounding  condi- 
tions are  favorable  to  it;  democracies  are  impatient 
of  delays  and  eager  for  action;  they  desire  to  see 
things  accomplished;  moreover,  they  have  not  lost 
the  early  optimism  with  respect  to  the  efficacy  of  legis- 
lative remedies.  The  individual  legislator  feels  that 
his  services  will  not  be  duly  appreciated  should  he 
confine  his  activities  solely  to  a  careful  weighing  of 
proposed  legislation  and  a  critical  attitude  toward  the 
projects  of  his  associates.  Some  positive  action  will 
be  demanded  of  him ;  even  if  he  does  not  put  his  name 
to  some  piece  of  general  legislation,  there  will  be  a 
large  number  of  local  interests  in  his  constituency 
which  must  be  looked  after.  As  a  result  of  these  con- 
ditions, the  amount  of  legislation  produced  in  the 
United  States  in  the  alternate  years,  when  the  larger 
number  of  legislatures  meet,  is  astounding  in  itself, 
and,  when  compared  with  the  legislation  of  other  civ- 

299 


AMERICAN  LEGISLATURES 


ilized  states,  it  indicates  a  crudeness  of  the  legislative 
function,  a  lack  of  careful  consideration,  which  are 
alarming.  The  number  of  legislative  enactments 
passed  in  the  states  in  a  single  year  has  exceeded 
fourteen  thousand,  covering  in  printed  form  some 
twenty  to  twenty-five  thousand  pages.  During  the 
five  years  from  1899  to  1904  the  total  number  of 
acts  passed  by  American  legislatures  was  45,552.  The 
political  and  social  service  which  in  our  own  system 
required  this  flood  of  enactment  was  in  the  principal 
European  states  performed  by  a  few  hundred  statutes. 
Of  these  45,552  enactments,  16,320  were  public  or 
general  laws,  while  the  remainder  were  special  and 
local.  During  the  second  session  of  the  Fifty-eighth 
Congress  there  were  introduced  in  the  House  of  Rep- 
resentatives 20,074  bills  and  resolutions.  The  various 
House  committees  reported  4,904  measures  and  3,992 
acts  were  passed  by  both  houses  during  the  session. 
Of  the  measures  enacted,  1,832  were  public,  2  160  were 
private  laws,  40  were  joint  resolutions. 

It  is  the  prominence  and  the  great  amount  of  private 
and  local  legislation  which  constitutes  the  chief  blem- 
ish of  the  American  system.  As  we  have  already  seen, 
the  attempt  has  been  made  to  cut  down  the  amount 
of  private  legislation  by  specific  and  general  consti- 
tutional prohibitions ;  and  while  some  relief  has  re- 
sulted from  this  method,  it  has  on  the  other  hand  led 
to  the  frequent  use  of  shifty  practices  by  which  local 
legislation  is  given  the  form  of  general  law,  and  thus, 
in  addition  to  its  inherent  harmfulness,  has  assisted 
in  unsettling  the  stability  of  the  legal  system.  The 
volume  of  legislation  varies  in  direct  proportion  to 

300 


THE  LEGISLATIVE  PRODUCT 


the  amount  of  special  and  local  legislation  passed. 
Thus  in  1903,  the  state  where  legislation  was  most 
prolific  was  North  Carolina,  whose  constitution  con- 
tains practically  no  restrictions  on  local  or  private 
legislation,  and  whose  governor  possesses  no  veto 
power.  The  states  in  which  measures  prohibitory  or 
restrictive  of  legislation  have  been  taken,  have  as  a 
result  perceptibly  lessened  their  legislative  overflow.^ 
Alabama's  radical  move  in  increasing  the  interval 
between  regular  sessions  of  the  legislature  to  four 
years,  was  brought  about  by  a  very  cloudburst  of 
local  legislation.  The  sessions  of  1891  and  1901, 
passed  approximately  one  law  of  general  character 
to  every  eleven  of  private,  local,  or  special  applica- 
tion. In  the  latter  session,  out  of  a  total  of  1,132 
measures  poured  out  from  the  legislative  mill,  only 
about  90  were  general  in  nature. 

While  examples  of  the  abuse  of  private  and  local 
legislation  might  be  gathered  from  all  the  common- 
wealths, the  recent  legislative  history  of  Maryland- 
furnishes  such  an  abundance  of  striking  illustration 
that  it  requires  more  than  passing  mention.    Although 

*  Length  of  sessions  and  number  of  enactments  in  1903: 


Days 

Laws 

Days 

Laws 

Colorado    

,  .      90 

181 

New  Jersey 

80 

273 

Illinois    

.  .    121 

210 

Oregon    

40 

173 

Massachusetts    , 

,  .   171 

485 

South  Carolina  . . 

40 

172 

Missouri    

.  .      76 

207 

West  Virginia  . . 

45 

80 

Among  seven  states,  not  long  in  the  Union,  averaging  in  ses- 
sion sixty  days:  Minimum,  Montana,  111  acts.  Maximum, 
South  Dakota,  226  acts. 

-301 


AMERICAN  LEGISLATURES 


the  constitution  of  this  state  contains  certain  limita- 
tions regarding  the  passage  of  special  legislation,  the 
Court  of  Appeals  has  given  these  provisions  such  a 
construction  as  to  render  them  of  little  force.^  Until 
1903,  there  was  no  case  declaring  an  act  void  under 
the  clause  against  special  legislation.  In  that  yeav 
the  Allegany  corporation  tax  law  of  1900  was  held 
invalid.^  The  relative  amount  of  special  legislation 
is  shown  in  the  following  table  of  percentages : 

1902  1904 

Local  acts 45  per  cent.  ^  56  per  cent. 

Special  acts  35''     ''  1^  ''     " 

General  20  ''     ''  15   '*     '* 

The  percentage  of  general  acts  includes  appropria- 
tion hills,  and  many  other  acts  not  classifiable  as  per- 
manent legislation ;  indeed,  about  one  half  of  the  gen- 
eral acts  are  only  of  temporary  and  limited  applica- 
tion. In  certain  matters  in  which  other  legislatures 
quite  generally  prescribe  a  uniform  practice  through- 
out their  state,  Maryland  adopts  different  procedures 
for  the  various  divisions  of  the  commonwealth.  A 
most  striking  example  of  this  occurs  in  the  manner 
in  which  different  forms  of  election  procedure  are 
applied  in  different  counties.  So  great  is  the  special- 
izing tendency  that  matters  of  such  importance  as 
the  law  of  corporations,  of  taxation,  assessment,  edu- 

*  Hodges  V.  Baltimore  Union  Passenger  Eailway  Co.,  58  Md., 
603.    Gans  v.  Carter,  77  Md.,  1.    Revell  v.  Annapolis,  81  Md.,  1. 

*  Baltimore  v.  County  Commissioners  of  Aljegany  County,  99 
Md.,  1. 

302 


THE  LEGISLATIVE  PRODUCT 


cation,  legal  procedure,  and  even  the  criminal  code, 
are  so  bound  up  and  embarrassed  by  local  and  special 
enactments  as  to  lose  the  consistency  and  general 
validity  which  are  usually  considered  essential  to 
these  branches  of  the  law.  The  constant  interference 
with  local  government  is  exemplified  by  the  work  of 
the  session  of  1888,  which  passed  fifty-three  separate 
local  acts  giving  certain  special  powers  to  various 
county  boards.  The  present  extent  of  the  local  appli- 
cation of  special  measures  appears  from  the  fact  that 
in  the  session  of  1904  the  legislature  passed  over 
twenty-five  laws  for  the  private  benefit  of  one  county 
alone  (Allegany).  The  same  session  passed  thirty- 
four  varying  local  measures  on  the  one  subject  of  fish 
and  game. 

A  particularly  mischievous  form  of  local  legisla- 
tion consists  in  the  creation  of  the  office  of  county 
treasurer  in  some  districts,  with  its  simultaneous 
omission  in  others,  thus  lessening  the  likelihood 
of  eifective  administration.  Worst  and  most  dan- 
gerous of  all  are  the  local  exemptions  in  matters 
of  taxation.  The  session  of  1900  alone  passed  fifteen 
acts  freeing  bond  issues  of  certain  localities  from 
state  taxes.  It  should  be  noted  that  no  measure  of 
this  kind  regarding  Baltimore  City  has  ever  come 
within  the  limits  of  probability  of  passage.  A  promi- 
nent example  of  conflict  between  state  and  local  in- 
terest is  that  respecting  oyster  beds.  In  this— a  mat- 
ter of  great  and  long-continued  interest  concerning 
state  property  having  an  admitted  need  for  a  law  of 
general  application— the  opposition  of  the  tidewater 
district  for  a  long  time  delayed  the  Haman  bill  of 
-303 


AMERICAN  LEGISLATURES 


1906,  notwithstanding  the  general  advantage  to  in- 
dustry and  state  therein  assured.  The  strong  desire 
of  powerful  interests  for  exceptional  privileges  and 
exemptions  has  resulted  in  their  securing  special  acts 
of  incorporation,  while  less  favored  enterprises  must 
incorporate  under  the  general  incorporation  law. 
The  last  decade  has  been  especially  prolific  in  this 
type  of  special  legislation,  the  highwater  mark  being 
reached  in  1900,  when  there  were  passed  fifty-eight 
special  incorporation  acts  and  eighty-six  acts  amend- 
ing private  charters.  The  larger  number  of  these  char- 
ters are  for  public  service  corporations  or  banking  com- 
panies. In  many  instances,  the  applicants  are  merely 
proxies  for  the  real  interest  desiring  the  privileges 
conferred.  In  other  cases,  politicians  secure  such 
charters  in  order  to  dispose  of  them  at  commercial 
advantage  to  interests  who  are  likely  to  be  benefited 
by  their  possession  or  to  be  threatened  by  their  use 
in  the  hands  of  rivals  or  blackmailers.^ 

In  commonwealths,  as  in  the  national  Congress,  the 
worst  phase  of  the  localizing  legislation  appears  not 
in  the  flood  of  local  and  special  bills,  but  in  the  de- 
feating, embarrassing,  and  mutilating  of  general 
laws  in  order  to  please  a  special  interest.  In  the  first 
place,  the  very  volume  of  local  measures  with  their 
peculiar  importance  to  the  individual  legislator,  sub- 
ordinates vital  interests  to  these  special  petty  arrange- 
ments. As  a  result  of  this  condition,  the  measures  of 
most   far-reaching   importance   are   crowded  to   one 

^  See  valuable  report  on  * '  Evils  of  Special  and  Local  Legis- 
lation, *'  by  Oscar  Leser,  in  Maryland  Bar  Association  Ept., 
1904. 

304 


THE  LEGISLATIVE  PRODUCT 


side,  and  receive  passage  perhaps,  but  not  wise  and  ■ 
concentrated  attention.  In  its  extreme,  the  localizing  j  1 
tendency  leads  to  a  system  of  group  representation.  ' 
The  liherum  veto  of  senatorial  unanimous  consent 
finds  a  not  distant  analogy  in  the  state  legislator's 
frequent  ability  to  defeat  a  measure  objected  to  by 
the  interests  of  his  locality.  The  organs  of  local  gov- 
ernment themselves  are  the  greatest  sufferers  from 
the  excess  of  special  legislation.  The  function  of 
county  or  municipal  home-rule  is  in  some  cases 
atrophied,  and  in  every  instance  mutilated,  by  the 
constant  interference  of  the  state  authority.  Meas- 
ures that  favor  one  locality  usually  do  so  at  the  ex- 
pense of  sister  communities.  A  factor  which  increases 
the  likelihood  of  favorable  action  upon  proposals  for 
local  legislation  is  the  quite  usual  practice  of  re- 
ferring such  bills  to  the  delegation  from  the  locality 
whose  interests  are  directly  affected  by  the  measure 
in  question.  Matters  like  these  are  very  rarely  made 
subjects  of  party  action,  and  by  mutual  arrangement 
meet  with  little  or  no  opposition. 

The  total  prohibition  of  private  and  local  legis- 
lation would  not  be  feasible.  The  power  to  make 
such  enactments  must  be  lodged  somewhere;  and  if 
extreme  prohibition  should  be  placed  upon  the  legis- 
lature, the  circumvention  of  the  constitutional  law 
would  only  be  increased.  Other  methods  of  dealing 
with  this  problem  are  therefore  at  present  favored 
by  the  men  most  conversant  with  the  situation.  The 
New  Jersey  constitution  of  1876  provided  that  the 
legislature  "^hall  not  pass  any  act  regulating  the  in- 
ternal affairs  of  towns  and  counties,"  leaving  this  to 
20  """  -^305 


AMERICAN  LEGISLATURES 


the  local  boards.  The  result  of  this  policy  has  been 
gratifying.  While  in  the  years  preceding  1876  the 
average  number  of  local  laws  passed  by  the  legislature 
was  over  300,  in  the  years  from  1876  to  1905  it  stood 
at  an  inconsiderable  total  per  year.  A  commission  of 
the  New  York  legislature  in  1896,  which  had  made  a 
careful  investigation  of  the  defects  in  legislative 
methods,  fixed  upon  private  and  local  legislation  as  a 
chief  source  of  abuse.  It  pointed  to  the  English 
system  of  private  bill  procedure  as  a  model.  Though 
for  the  time  being  this  standard  is  unfortunately  not 
achievable  in  the  United  States  on  account  of  special 
conditions,  the  commission  recommended  some  modi- 
fications of  procedure  which  in  principle  are  a  part' 
of  the  English  system.  Thus  it  would  require  meas- 
ures dealing  with  local  and  special  interests  to  be 
filed  some  time  before  presentation  in  the  Jegislature, 
notice  to  be  given  to  those  likely  to  be  affected  by 
their  operation,  and  counter-petitions  to  be  received 
from  adverse  interests.  In  a  number  of  states  notice 
of  certain  private  bills  is  already  required  by  consti- 
tutional provision,  by  enactment,  or  by  the  rules  of 
legislative  procedure.^  Another  suggestion  of  the 
commission  is  that  private  and  local  bills  be  placed 
upon  a  separate  calendar,  and  that  the  expense  of 
such  legislation  be  borne  by  the  parties  interested. 

It  is  not  surprising  that  under  prevailing  condi- 
tions the  legislative  product  has  lost  in  quality  what 

^Constitutional  provision:  Rhode  Island,  Pennsylvania,  New 
Jersey,  North  Carolina,  Georgia,  Florida,  Alabama,  Texas,  Ar- 
kansas, Louisiana.  Statute:  Pennsylvania,  Massachusetts. 
Rules:  Virginia,  Maine,  Vermont. 

306 


THE  LEGISLATIVE  PRODUCT 


it  has  gained  in  amount.  When  it  has  become  phys- 
ically impossible  for  a  legislator  to  give  a  careful 
reading  to  all  the  legislative  bills  proposed,  even 
should  he  use  the  entire  working  time  of  the  session, 
it  is  of  course  hopeless  to  expect  the  due  considera- 
tion, weighing,  and  sifting  of  all  the  measures.  In- 
stead of  fulfilling  the  ideal  of  rationally  and  thor- 
oughly considering  all  proposed  legislation,  the  work 
of  the  legislator  ordinarily  resolves  itself  to  seeing 
that  his  own  bills  may  receive  a  fair  consideration, 
and  to  making  such  arrangements  with  other  mem- 
bers that  by  mutual  assistance  their  respective  meas- 
ures may  have  some  chance  of  passage.  In  such 
arrangements  the  merits  of  individual  bills  are  a 
minor  consideration,  the  principal  point  being  to 
ascertain  what  members  are  for  the  proposed  meas- 
ure, and  what  they  are  able  to  do  for  other  members 
in  return  for  the  assistance  of  the  latter.  It  is  there- 
fore not  surprising  that  our  legislation  should  in 
general  be  haphazard,  inconsistent,  and  often 
absolutely  incompatible,  and  that  there  should  be 
absent  from  it  the  effective  correlation  of  new  meas- 
ures with  the  existing  body  of  the  law. 

Many  statutes  are  intolerably  confused  and  con- 
tradictory on  account  of  the  lack  of  logical  acumen 
on  the  part  of  the  framers,  or  on  account  of  the  use 
of  that  convoluted  verbiage  which  has  become  the 
bane  of  legal  pleading  in  so  many  states.^  Enact- 
ments are   overloaded  with   detailed  regulations  of 

^  Examples  of  verbiage  such  as  the  following  are  common  in 
American  statute  law,— "The  court  may  establish  rules  for  its 
government  and  the  regulation  of  the  practice  therein;  pre- 

'307 


AMERICAN  LEGISLATURES 


matters  which  could  much  better  be  left  to  the  execu- 
tive agencies.  They  are  often  filled  with  repetitions  and 
specifications  probably  designed  to  safeguard  the  pub- 
lic; but,  on  account  of  their  technical  and  involved 
nature,  these  render  the  legislative  product  obscure 
and  full  of  passages  which  necessitate  further  legal 
interpretation.  Sometimes  the  slipshod  methods  of 
the  clerical  employees  are  responsible  for  the  uncer- 
tainty of  statutes.  Thus  in  the  McKinley  act  the 
sections  relating  to  the  tobacco  rebate  were  omitted, 
though  Congress  had  passed  them,  and  the  President 
actually  signed  a  different  bill  from  the  one  that  had 
passed  Congress.  In  Alabama  when  certain  important 
words  had  thus  been  omitted  from  a  statute,  the  gov- 
ernor, after  the  adjournment  of  the  legislature,  sum- 
moned the  committee  chairman  and  inserted  the 
phrase  in  the  engrossed  copy.  The  whole  process  of 
engrossing  is  an  antiquated  method  which  has  profit- 
ably been  displaced  in  Indiana  by  having  the  bills,  as 
amended  for  a  third  reading,  printed,  so  that  mistakes 
can  be  readily  discovered  by  the  legislators  upon  ex- 
amination before  final  passage. 

The  principal  source  of  confusion  in  the  statute 
law  is  the  practice  of  amendment  without  due  regard 
to  the  new  relations  with  other  portions  of  the  law, 
created  by  such  amendments;  or  the  process  of  im- 
plied amendment  by  simply  passing  a  measure  con- 
scribe  the  forms  and  the  methods  of  procedure  before  it,  etc. ' ' 
(N.  Y.  Laws  of  1897,  Ch.  36,  Sec.  265.)  The  General  Village 
Act  of  New  York  (Laws  of  1897,  Ch.  414)  also  contains  many 
examples  of  involved  and  ambiguous  clauses. 

308 


THE  LEGISLATIVE  PRODUCT 


tradictory  to  former  legislation,  without  any  serious 
attempt  it^-hrmg  the  older  and  the  newer  law  into 
harmony  with  each  other  and  definitely  to  supersede 
a  portion  of  the  older  law  by  the  new  enactment. 
Mr.  Bishop  in  his  ** Statutory  Crimes"  has  forcibly 
described  and  characterized  this  practice  in  the  fol- 
lowing language:  ''Some  of  the  greatest  difficulties 
occur  where  enactment  has  been  piled  on  enactment— 
where  nothing  is  in  terms  repealed,  but  this  year  a 
statute  is  added  to  what  was  written  last  year,  and 
so  from  year  to  year— and  while  the  later  law  plainly 
repeals  in  part  the  prior,  by  construction,  it  as  plainly 
does  not  repeal  the  whole ;  yet  where  the  repeal  begins 
and  where  it  ends,  it  is  difficult  to  tell. ' '  Congress  has 
often  amended  laws  that  were  no  longer  in  force, 
having  been  repealed  before,  or  it  has  passed  amend- 
ments entirely  overlooking  former  amendments  to 
the  same  statute.  Laws  already  existing  are  fre- 
quently overlooked  by  the  legislators  and  are  re- 
enacted  in  more  ^r  less  modified  form.  The  confusion 
in  the  statute  law  of  many  states  is  even  worse  than 
in  the  federal  law.  The  canal  legislation  of  New 
york  presents  a  labyrinth  of  almost  hopeless  and  irra- 
tional intricacy.  Year  after  year  laws  were  passed 
in  utter  disregard  of  former  enactments,  and  the  ad- 
mmistrative  officers  of  the  state  were  left  to  decide 
for  themselves  what  parts  of  the  enacted  laws  were 
actually  in  force.  With  reference  to  the  laws  con- 
cerning public  improvements  in  New  York  City  and 
Brooklyn,  the  New  York  Court  of  Appeals  declared 
that  enactments  had  been  re-enacted,  modified,  and 

309 


AMERICAN  LEGISLATURES 


superseded  so  often  that  it  was  difficult  to  ascertain 
just  what  statutes  were  in  force  at  any  given  time.^ 
If  the  highest  court  of  the  state  finds  such  difficulty, 
it  may  be  imagined  that  to  the  ordinary  citizen  the 
confusion  is  hopeless,  and  that  to  the  lawyer  it  means 
chiefly  the  opportunity  for  unending  litigation.  In 
1893,  the  Pennsylvania  corporation  act  passed  in 
1874  was  made  to  include  new  corporations,  but  the 
amendments  passed  in  the  intervening  years  were  not 
mentioned,  and  their  validity  and  application  were 
thereby  thrown  into  doubt.  The  governor,  though 
approving  the  measure  on  account  of  its  general  ef- 
fect, severely  criticized  its  structure.  The  Pennsyl- 
vania act  of  April  18,  1895,  was  drawn  in  such  a 
slovenly  manner  that  the  interpretation  given  to  it 
by  the  courts  necessitated  the  passage  of  three  cura- 
tive statutes.  The  Pennsylvania  legislature  also  made 
a  clumsy  attempt  to  revive  certain  local  legislation 
by  repealing  former  repeals  of  such  enactments.  In 
Massachusetts  the  consolidation  of  two  laws  requir- 
ing the  closing  of  different  classes  of  drinking  places 
at  11  and  12  o'clock,  respectively,  was,  on  account  of 
the  use  of  a  semicolon,  given  the  effect  of  closing  all 
such  places  at  the  earlier  hour.  The  Royer  law,  passed 
in  Ohio  in  1902,  divested  the  Supreme  Court  of  that 
state  of  the  larger  part  of  its  appellate  jurisdiction, 
an  effect  not  contemplated  by  the  legislators.  When 
the  consequences  of  the  act  were  understood,  for  the 
purpose  of  remedying  it  a  special  session  was  called 
at  an  expense  to  the  state  of  $50,000.  The  defects  of 
the  Illinois  primary  election  law  of  1905,  which  caused 
^  In  re  Kiernan,  62  N.  Y.,  459. 
310 


THE  LEGISLATIVE  PRODUCT 


the  state  Supreme  Court  to  declare  it  unconstitutional, 
also  necessitated  an  extra  session  of  the  legislature. 

In  states  in  which  the  statutes  have  been  reduced 
to  the  form  of  a  code,  or  have  been  given  logical  ar- 
rangement in  a  revision,  the  evils  incident  upon  indis- 
criminate and  careless  amendment  can  be  abated  by 
the  requirement  that  any  new  legislation  of  a  general 
nature  or  any  amendments  of  a  general  law  shall  in 
their  title  be  referred  to  their  proper  place  in  the 
code  or  revised  statutes.  This  would  give  an  oppor- 
tunity to  the  legislators  for  examining,  without  too 
extended  a  search,  the  relations  of  the  new  enactment 
to  the  law  of  which  it  is  to  form  a  part.  But  too 
much  should  not  be  expected  from  such  a  provision, 
without  the  assistance  of  expert  agencies  in  the  draft- 
ing and  revision  of  a  legislative  bill. 

Aside  from  a  defective  or  redundant  manner  of 
statement  and  aside  from  the  failure  to  analyze  the 
relation  of  new  amendments  to  the  existing  law,  the 
chief  source  of  the  inefficiency  of  American  statute 
law  is  found  in  the  fact  that  acts  are  constantly 
passed  which  do  not  have  a  strong  public  sentiment 
behind  them,  or  the  enforcement  of  which  is  not 
properly  provided  for.^  The  true  nature  of  law  is  not 
sufficiently  considered  by  American  legislators.  Es- 
pecially do  they  overlook  the  fact  that  a  law  should 
have  back  of  it  a  public  sentiment  strong  enough  to 
make  its  enforcement  regular  and  permanent.  Laws 
are  frequently  enacted  to  quiet  the  insistence  of  a 

^  See  an  analysis  of  the  Connecticut  law  from  this  point  of 
view  by  Charles  G.  Morris,  * '  Inefficient  Statutes, "  *  *  Yale  Law 
Journal,  "XIV,  430. 

-     311 


AMERICAN  LEGISLATURES 


limited  class  in  the  community  without  reference  to 
their  uniform  enforceability,  or  they  are  an  expres- 
sion merely  of  a  general  sentiment  of  what  ought  to  be, 
rather  than  a  determined  expression  of  the  actual  will 
of  the  community.  It  is  a  frequent  practice  to  enact 
criminal  statutes,  the  infringement  of  which  cannot 
generally  be  discovered  and  satisfactory  provisions 
for  discovery  of  which  are  not  made.  Often  ma- 
chinery for  the  enforcement  of  a  statute  is  not  pro- 
vided at  all  or  is  intentionally  left  so  weak  as  to  be 
practically  inoperative.  Thus  a  Wisconsin  statute 
under  which  penal  fines  were  to  be  turned  over  to  the 
educational  fund,  did  not  contain  provisions  for 
forcing  the  county  officials  to  make  such  payments. 
Another  common  example  is  found  in  the  laws  of 
escheat,  for  the  enforcement  of  which  adequate  ar- 
rangements are  rarely  made.  During  the  last  decade 
a  subject  which  has  held  the  most  prominent  place 
in  the  attention  of  the  public  as  well  as  the  legisla- 
tures has  been  the  regulation  of  trusts  and  of  im- 
portant industrial  activities.  The  legislation  pro- 
posed and  enacted  on  this  matter  in  Congress  and  in 
the  various  commonwealths  of  the  Union,  reveals  all 
the  weaknesses  of  a  popular  legislative  body  when 
dealing  with  economic  problems.  The  rush  of  indis- 
criminate legislation  in  the  earlier  attempts  to  cor- 
rect the  evils  of  trusts  and  combinations,  was  in  gen- 
eral so  hasty  and  iU-considered  as  to  be  futile  and 
to  leave  no  permanent  impress  on  the  legal  system  of 
the  country.  As  the  public  demanded  action  and  as 
the  most  radical  measures  received  the  most  favorable 
attention,  time  was  not  taken  to  study  the  intricacies 

312 


THE  LEGISLATIVE  PRODUCT 


of  the  problem,  and  enactments  confidently  turned 
out  by  men  who  had  little  mastery  of  the  principles 
involved.  When  the  authority  of  experience  made 
itself  felt  through  the  courts  and  the  logic  of  circum- 
stances in  the  economic  world,  the  futility  of  these 
earlier  enactments  was  recognized,  but  the  zeal  for 
the  indiscriminate  application  of  legislative  remedies 
did  not  abate.  Only  gradually  are  the  legislatures 
discovering  the  inadequacy  of  good  intentions  in  this 
matter,  as  well  as  the  necessity  of  conservative  meth- 
ods resting  upon  expert  knowledge. 

A  class  of  legislation  in  which  many  abuses  occur 
and  in  which  much  effort  is  uselessly  expended,  is 
that  attempting  to  regulate  trades  and  professions. 
Organized  labor  has  repeatedly  made  use  of  legisla- 
tive enactments  for  the  purpose  of  strengthening  its 
organization.  Laws  are  passed  making  definite  re- 
quirements for  a  certain  trade  or  profession,  insti- 
tuting commissions  to  conduct  examinations,  and  pro- 
viding that  no  license  shall  be  granted  to  any  person 
who  does  not  satisfy  the  provisions  of  the  law.  The 
theoretical  basis  upon  which  such  legislation  is  urged 
is  that  the  public  must  be  protected  against  untrained 
practitioners ;  and  in  professions  requiring  long  tech- 
nical training  there  is,  indeed,  a  certain  justification 
for  this  kind  of  supervision,  although  it  may  not  in 
itself  be  sufficient  to  discourage  the  army  of  quacks 
of  all  kinds  who  prey  on  the  public.  But  when  it  is 
applied  to  such  trades  as  those  of  plumbers,  barbers, 
and  blacksmiths,  it  becomes  void  of  all  justification 
from  the  point  of  view  of  the  general  public;  and 
leads  to  the  introduction  into  the  statute  law  of  prin- 
'313 


AMERICAN  LEGISLATURES 


ciples  which  cannot  easily  be  kept  within  the  bounds 
of  equity  and  constitutional  law.  Courts  have  conse- 
quently interfered  again  and  again  with  legislation 
of  this  kind.  An  example  of  purely  demagogic  legis- 
lation is  the  Pennsylvania  alien  tax  law,  which  im- 
posed a  tax  upon  unnaturalized  laborers,  and  the 
bakers'  act  of  1897,  both  of  which  were  declared 
unconstitutional,  the  latter  being  in  addition  pro- 
nounced ''meaningless  and  absurd."^ 

The  attitude  of  the  courts  toward  legislation  has 
changed  very  much  in  the  course  of  our  national 
existence.  During  the  earlier  decades  of  the  nine- 
teenth century,  the  constitutionality  of  statutes  was 
rarely  disallowed,  and  then  only  upon  very  strong 
grounds  and  by  an  undivided  court.  A  liberal  benefit 
of  doubt  was  always  given  to  the  validity  of  the  law. 
But  since  the  universal  degeneration  of  the  legislative 
product  the  courts  have  become  more  critical  and  have 
begun  freely  to  use  their  power  of  enforcing  the  con- 
stitutional law  in  opposition  to  statutes.  A  state- 
ment such  as  was  made  by  the  Supreme  Court  of 
Pennsylvania  in  1886,  would  have  been  thought  abso- 
lutely unwarranted  in  the  earlier  years.^  The  court 
said,  ''It  is  our  purpose  to  adhere  rigidly  to  the  con- 
stitution that  the  people  may  not  be  deprived  of  its 
benefits.  It  ought  to  be  unnecessary  for  the  court  to 
make  this  declaration,  but  it  is  proper  to  do  so,  in 
view  of  the  amount  of  legislation  which  is  periodically 

^For  other  examples  see  Hensel,  ''The  Decadence  of  the 
Legislative  Branch  of  our  State  Government,'^  Pa.  Bar  Asso- 
ciation, 1898,  p.  105. 

"  Morrison  v.  Bachert,  112  Pa.  St.,  322. 

314 


THE  LEGISLATIVE  PRODUCT 


placed  upon  the  statute  book  in  entire  disregard  of 
the  fundamental  law." 

The  field  of  legislation  in  which  the  natural  limita- 
tions of  the  legislative  function  are  most  clearly  re- 
vealed is  that  dealing  with  amendments  and  addi- 
tions to  the  common  law.  The  English  common  law 
is  peculiarly  the  product  of  social  experience,  its 
authoritative  development  and  interpretation  being 
left  almost  entirely  to  the  legal  profession  with  very 
infrequent  legislative  interference  on  the  part  of  Par- 
liament. Yet,  in  the  eighteenth  century  this  body  of 
the  law  was  in  a  condition  of  internal  incongruity, 
contradiction,  and  fictitiousness  which  justified  the 
severest  criticisms  by  Lord  Mansfield  and  Bentham. 
The  experience  of  England  seemed  at  that  time  to 
indicate  that  the  legal  profession  itself  could  not  be 
relied  on  adequately  to  adapt  the  common  law  to  the 
changing  conditions  of  society  and  to  cast  off  such 
parts  as  had  become  incumbrances.  At  the  very  be- 
ginning of  nineteenth  century  parliamentarism,  the 
question  of  the  relations  of  the  legislative  power  to 
the  common  law  of  the  state  therefore  presented  itself 
most  forcibly.  The  optimistic  belief  in  the  capacity 
of  legislatures  included  the  theory  that  the  entire  law 
of  the  state  should  be  recast  and  conformed  to  simple 
and  rational  standards.  This  work,  it  was  thought, 
should  not  be  intrusted  to  the  legal  profession  itself, 
because  its  members  were  bound  by  a  formal  con- 
servatism ;  but  it  was  rather  to  fall  to  the  legislature 
as  representing  the  common-sense  and  the  rational 
instincts  of  the  nation.  Bentham  and  the  earlier 
analytical  jurists  of  England  did  not  go  beyond  a 
-    315 


AMERICAN  LEGISLATURES 


logical  deduction  of  all  law  from  the  legislative  will. 
They  saw  in  the  legislature  the  actual  reforming  and 
controlling  agency  in  matters  of  common  or  general 
law.  The  practical  results  achieved  in  consequence 
of  the  application  of  these  views  indicate  clearly  the 
true  function  of  legislative  bodies  with  respect  to 
general  jurisprudence. 

The  history  of  law  reform  in  New  York  de- 
serves special  attention,  not  only  because  of  the  im- 
portance of  this  commonwealth  and  the  fact  that  the 
jurisprudence  of  many  other  states  is  derived  from  it ; 
but  because  the  matter  was  in  this  state  given  the 
greatest  amount  of  attention.  Legal  reform  there  had 
its  most  brilliant  advocates  and  opponents;  and  the 
results  hitherto  accomplished  give  unmistakable  indi- 
cations of  what  is  to  be  avoided  and  what  may  be 
achieved  by  legislatures  in  this  matter.  Agitation  for 
law  reform  began  early  in  the  century.  Governor  De 
"Witt  Clinton  took  up  the  matter  in  his  message  to 
the  legislature  in  1825,  when  he  said: 

*'The  whole  system  of  our  jurisprudence  requires 
revised  arrangement  and  correction.  A  complete  code 
founded  on  the  salutary  principles  of  society,  adapted 
to  the  interests  of  commerce  and  the  useful  arts,  the 
state  of  society  and  the  nature  of  our  government, 
and  embracing  those  improvements  which  are  en- 
joined by  enlightened  experience,  would  be  a  public 
blessing.  It  would  free  our  laws  from  uncertainty, 
elevate  a  liberal  and  honorable  profession,  and  utterly 
destroy  judicial  legislation,  which  is  fundamentally 
at  war  with  the  principles  of  representative  govern- 
ment. ' ' 

316 


THE  LEGISLATIVE  PRODUCT 


As  a  result  a  commission  of  three  members  was  ap- 
pointed to  revise  the  laws  of  New  York.  This  was  the 
first  attempt  of  any  English-speaking  commonwealth 
to  subject  the  entire  body  of  its  law  to  legislative 
revision.  Revisions  had  of  course  been  made  before 
but  they  did  not  go  beyond  methodical  arrangement 
of  the  statute  law,  in  which  minor  amendments  were 
suggested  and  obsolete  parts  eliminated.  The  legal 
profession  from  the  start  opposed  any  general  plan 
of  reform,  and  the  word  ''codification"  was  made  a 
symbol  about  which  a  vehement  controversy  was  car- 
ried on.  The  report  of  the  commission  was  considered 
at  an  extra  session  of  the  legislature  in  the  fall  of 
1827.  The  members  in  general  took  comparatively 
little  interest  in  the  discussion,  and  the  recommenda- 
tions of  the  commission  were  adopted  with  minor 
changes.  On  account  of  the  strenuous  opposition  to  a 
complete  codification,  the  commissioners  confined  their 
work  principally  to  the  law  of  officers,  of  crimes,  and 
of  real  property.  The  criminal  law  was  in  special 
need  of  reform,  for  though  the  American  law  was  not 
in  such  a  scandalous  condition  as  that  of  the  mother- 
country,  it  nevertheless  was  without  a  rational  basis  of 
distinction  between  degrees  of  crime.  The  changes 
introduced  by  the  commission  became  the  law  not  only 
in  New  York,  but  in  many  other  states  which  copied 
directly  from  that  commonwealth.  The  reform  of  the 
law  of  real  property  included  the  abolition  of  the 
feudal  system  of  tenure,  and  the  substitution  therefor 
of  the  allodial  principle. 

The  work  accomplished  at  this  time  did  not,  how- 
ever, permanently  satisfy  the  law  reformers,  who  de- 
-     317 


AMERICAN  LEGISLATURES 


sired  this  method  of  revision  to  be  extended  to  the 
entire  law.  Under  the  leadership  of  David  Dudley 
Field,  they  adopted  ''codification"  as  their  watch- 
word, and  demanded  the  reduction  of  the  entire  body 
of  the  law  to  rational  arrangement,  simple  phrase- 
ology, and  lucid  principle.  As  a  result  of  their  ef- 
forts, the  constitution  of  1846  contained  provisions  in 
favor  of  code  reform;  and  subsequently  two  commis- 
sions were  appointed,  one  of  which  was  to  codify 
the  law  of  procedure,  the  other  the  substantive  law. 
The  latter  did  not  carry  out  its  purpose;  but  the 
procedure  commission  under  the  leadership  of  Field 
worked  rapidly,  and  in  1848  reported  the  first  instal- 
ment of  the  code  of  civil  procedure.  It  was  only 
this  first  instalment  that  was  adopted  by  the  legisla- 
ture, and  it  became  the  model  of  code  procedure  for 
more  than  one-half  of  the  American  commonwealths. 
The  completed  codes  of  civil  and  criminal  procedure 
were  submitted  in  1850,  but  were  not  accepted  by  the 
legislature.  The  work  of  the  commission  however  re- 
ceived instantaneous  national  and  international  recog- 
nition. Robert  Lowe  said  of  it,  "No  acquisition  of 
modern  times,  no  achievement  of  the  intellect  is  to  be 
compared  with  the  removal  of  technicalities  and  ab- 
surdities in  the  common  law  practice."  Though  dis- 
couraged by  the  rejection  of  the  completed  codes. 
Field  continued  his  efforts  with  singlehearted  devo- 
tion to  the  principle  of  law  reform.  For  eighteen 
years  he  worked  steadily  on  the  codes,  receiving  no 
compensation,  but  on  the  contrary  paying  his  assist- 
ants himself.  Through  his  efforts  a  new  commission 
was  appointed  in  1859  to  codify  the  substantive  law. 

318 


THE  LEGISLATIVE  PRODUCT 


The  final  report  was  made  in  1865,  and  a  penal  code, 
a  political  code,  and  a  civil  code  were  submitted.  The 
civil  code  was  twice  passed  by  both  branches  of  the 
legislature;  but,  failing  of  approval  by  the  governor, 
was  never  enacted  in  New  York,  although  copied  by 
Dakota,  California,  and  Montana.  The  penal  code 
was  finally  adopted  in  1882.  During  all  these  years 
the  legislature  had  been  making  profuse  amendments 
to  the  original  code  of  procedure.  In  1877,  its  entire 
revision  was  undertaken,  notwithstanding  the  oppo- 
sition of  Field  himself,  who  said,  "The  new  code  is 
merely  the  old  code  disfigured  and  disguised.*'  The 
guiding  idea  of  the  original  code  had  been  simpli- 
fication ;  the  revision  was  so  cumbersome  and  compli- 
cated as  to  be  opposed  to  the  inherent  principle  of 
law  reform.  As  a  matter  of  fact  the  ideal  of  the 
original  law  reformers  that  the  law  should  be  sim- 
plified and  rendered  more  logical  and  reasonable,  was 
totally  abandoned  by  the  legislature  in  actual  prac- 
tice. Aside  from  the  revision  of  1877,  when  the  code 
was  overloaded  with  a  heavy  mass  of  intricate  enact- 
ment, the  legislature  annually  amended  the  code  by 
numerous  detailed  provisions.  This  legislative  inter- 
ference led  to  such  uncertainty  in  practice  that  about 
one  half  of  the  decisions  of  the  higher  courts  in  New 
York  dealt  with  questions  of  procedure.  The  result 
of  this  attempted  simplification  is  remarkable  when 
compared  with  the  procedure  of  jurisdictions  that 
have  not  been  affected  by  such  legislation.  The  equity 
procedure  of  the  Federal  courts  is  carried  on  under  the 
simplest  rules.  In  none  of  the  New  England  states 
would  there  be  more  than  two  volumes  of  decisions  on 
-   319 


AMERICAN  LEGISLATURES 


questions  of  procedure.  But  the  New  York  Code  of 
Civil  Procedure  alone,  with  its  annotations,  fills  at 
present  four  volumes  containing,  in  the  aggregate, 
over  four  thousand  pages.  To  this  must  be  added 
about  one  hundred  and  twenty  volumes  of  reported 
decisions  dealing  exclusively  or  primarily  with  ques- 
tions of  procedure  under  the  code.  When  it  is  con- 
sidered that  this  is  but  one  branch  of  the  law,  of  less 
importance  than  the  substantive  civil  and  penal  law, 
the  full  meaning  of  this  flood  of  legislation  and  conse- 
quent decision  may  be  appreciated. 

The  worst  use  of  the  practice  of  amendment  is  apt 
to  occur  when  lawyers,  in  charge  of  certain  litigation, 
encounter  in  the  code  a  provision  unfavorable  to  their 
side  of  the  case ;  and,  using  their  influence  with  some 
legislator,  introduce  a  bill  amending  this  particular 
section  to  suit  their  temporary  convenience.  As  the 
ordinary  members  are  not  interested  in  code  amend- 
ments, such  a  provision  is  very  likely  to  pass  without 
scrutiny.  The  function  of  amending  the  law  of  pro- 
cedure has  therefore  degenerated  into  an  instrument 
for  obliging  private  parties,  with  a  result  that  the  law 
is  kept  in  an  intolerable  state  of  uncertainty.^    In  the 

^  Instances  of  an  unjustifiable  use  of  the  power  of  amend- 
ment are  found  in  section  3063  of  the  proposed  New  York  civil 
code  of  1887,  preventing  the  recovery  of  damages  against  ele- 
vated railroads  for  nuisances  of  smoke  and  noise;  and  chapter 
572  of  the  Laws  of  1886,  which  requires  a  notice  of  the  inten- 
tion to  bring  suit  against  a  city  for  damages,  to  be  filed  with 
the  corporation  counsel  within  six  months  after  the  injury. 
The  latter  was  so  indexed  as  to  be  concealed;  and  is  said  to 
have  been  put  through  the  legislature  to  make  a  record  for  the 
New  York  City  corporation  counsel  in  defending  suits  against 

320 


THE  LEGISLATIVE  PRODUCT 


eight  years  from  1890  to  1897,  eight  hundred  and 
four  sections  of  the  code  were  amended,  more  than 
double  the  number  in  the  original  code;  and  the 
amendments  which  were  added  between  1902  and 
1905  fill  a  quarto  volume  of  500  pages.  The  code 
itself  at  present  contains  3056  sections.  The  sub- 
stantive law  has  fared  but  little  better  than  the  law 
of  procedure.  In  1889,  there  was  appointed  in  New 
York  a  statutory  revision  commission.  The  work  dele- 
gated to  this  body  was  not  a  codification  of  the  com- 
mon law,  but  a  logical  arrangement  and  restatement, 
without  substantial  change,  of  the  general  statutes. 
The  commission  reported  forty-eight  general  acts 
which  were  adopted ;  but  in  the  first  decade  after  their 
adoption,  over  two  thousand  amendments  to  them 
were  passed.  The  amendments  to  the  New  York  gen- 
eral laws  made  in  the  years  between  1901  and  1904 
would  cover  one  thousand  pages.  The  work  of  the 
commission  was  criticized  because  it  did  not  make  a 
careful'  page  to  page  revision  of  all  the  session  laws, 
but  founded  its  work  rather  upon  former  collections. 
It  was  abolished  in  1900,  and  in  the  following  year  a 
legislative  committee  of  fifteen  reported  in  favor  of  a 
complete  consolidation  and  analysis  of  the  general 
and  local  laws  of  New  York.  In  1904,  there  was  ac- 
cordingly appointed  a  Board  of  Statutory  Consolida- 
tion of  five  members  to  carry  out  the  proposed  work. 

the  city.  There  already  existed  a  statute  requiring  the  filing 
of  such  notices  with  the  Controller.  See  Clarke,  ' '  The  Science 
of  Law,"  p.  271.  In  Wisconsin,  certain  lawyers  attempted  to 
change  the  law  of  guardianship,  in  order  to  secure  control  of 
the  person  of  a  minor  for  a  client. 

21  -  321 


AMERICAN  LEGISLATURES 


The  dangers  of  legislative  law  reform  occur  in  other 
states,  although  not  in  the  extreme  manner  which  has 
been  witnessed  in  New  York.  All  our  commonwealths 
have  suffered  from  ill-considered  amendments,  which 
unsettle  the  law  and  render  it  uncertain  how  far 
decisions  already  made  under  older  laws  still  apply. 

Among  southern  states,  Virginia  had  a  very  thor- 
ough revision  of  her  statute  law  in  1849.  A  new 
revision  was  passed  in  1904  as  a  single  act  without  a 
written  report  being  submitted  by  the  advisory  com- 
mission. The  work  of  the  commission,  however,  seems 
to  have  been  well  performed.  The  Virginia  ''Code" 
is  not  a  real  codification  of  the  law  in  all  its  branches, 
but  only  a  systematic  statement  of  the  statutory  gen- 
eral law.  The  same  is  true  of  the  ''codes"  of  Ten- 
nessee, South  Carolina,  North  Carolina,  Mississippi, 
and  Alabama.  Georgia,  however,  adopted  a  complete 
system  of  codes  in  1860  which  were  revised  in  1895, 
and  which  embrace  the  entire  common  and  statutory 
law,  both  substantive  and  adjective.  The  administra- 
tion of  the  law  under  the  Georgian  codes  has  on  the 
whole  been  satisfactory,  and  the  legislature  has  not 
been  guilty  of  excessive  meddling.  Other  common- 
wealths which  have  codified  their  entire  jurisprudence 
are  California,  the  Dakotas,  Idaho,  and  Montana. 
The  original  New  York  Code  of  Civil  Procedure  has 
been  adopted  in  its  essentials  in  twenty-five  states; 
the  Code  of  Criminal  Procedure  in  eighteen  states. 
The  Minnesota  revision  of  1903  illustrates  some  of  the 
dangers  inherent  in  this  method  of  legislative  action. 
The  commission  appointed  to  do  the  work  was  com- 
posed, not  of  representative  legal  experts,  but  rather 

322 


THE  LEGISLATIVE  PRODUCT 


of  men  selected  on  account  of  political  influence.  The 
actual  work  of  revision  was  performed  largely  by  the 
employees  of  a  publishing  house.  The  statutes  were 
greatly  reduced  in  bulk;  but  when  the  report  of  the 
commission  was  made,  it  was  soon  noticed  that  many 
of  the  omissions  were  exceedingly  significant.  This 
was  especially  true  of  the  corporation  law,  which  by 
apparently  unimportant  changes  was  really  made 
much  laxer  and  more  favorable  to  the  large  corporate 
interests.  The  legislature  was  thoroughly  aroused 
and  over  two  thousand  amendments  to  the  revision 
were  passed.  As  this  work  had  to  be  done  rapidly, 
the  total  result  did  not  command  the  confidence  of 
the  most  experienced  and  intelligent  members.  But 
although  grave  doubts  existed  as  to  the  advisability 
of  its  adoption,  the  revision  was  put  through  as  a 
party  measure,  because  a  large  amount  of  money  had 
been  spent  on  it.^ 

The  experience  of  all  our  commonwealths  affords 
illustrations  of  the  dangers  of  excessive  meddling  with 
the  common  law  by  legislative  bodies.  Questions  of 
technical  jurisprudence  are  not  in  themselves  interest- 
ing to  a  legislature,  and  a  proper  discussion  of  mea- 
sures of  this  nature  can  therefore  not  be  expected.  A 
revision  to  be  successful  must  be  carried  out  by  trained 
and  liberal-minded  members  of  the  legal  profession, 
and  must  be  adopted  by  the  legislature  largely  on 
faith.  Legislative  meddling  ordinarily  proceeds  from 
interested  private  persons  who  seek  some  special  ad- 

^In  Iowa,  in  1897,  the  report  of  an  expert  code  commission 
was  refused  concurrence,  and  a  code  of  inferior  quality  to  that 
proposed  by  the  commission  was  adopted  by  the  legislature. 

'323 


AMERICAN  LEGISLATURES 


vantage  and  care  nothing  for  the  general  character 
of  the  law.  Every  honest  effort  at  reform  necessi- 
tates expert  knowledge  of  the  law  in  all  its  intricacy, 
because  otherwise  the  enactment  will  either  be  futile, 
or  harmful  through  disturbing  settled  relations  of  law 
and  creating  uncertainty.  When,  after  great  expense 
to  the  state  and  to  private  individuals  in  litigation, 
the  meaning  of  a  certain  provision  of  the  code  has  been 
finally  determined,  it  is  very  undesirable  that  a  new 
amendment  should  sweep  away  all  this  jurisprudence 
and  make  it  necessary  to  begin  the  work  of  inter- 
pretation over  again. 

It  is  interesting  to  note  the  attitude  of  the  legal 
profession  toward  legislative  law  reform.  Of  course, 
the  leaders  of  true  legal  reform  will  nearly  always 
come  from  that  profession,  because  its  technical  know- 
ledge is  necessary  to  secure  effective  amendment  and 
revision  of  the  law.  So  the  great  names  in  the  annals 
of  American  law  reform,  like  Livingston,  Spencer, 
and  Field,  are  those  of  highly  trained  and  expe- 
rienced lawyers.  But  the  bulk  of  the  profession  is  as 
a  rule  opposed  to  codification  or  radical  revision. 
With  the  more  broad-minded  men  the  cause  of  this 
attitude  is  the  belief  which  J.  C.  Carter  has  expressed, 
"that  judicial  procedure  is  not  a  fit  subject  of  legis- 
lative interference,  and  that  the  development  of  the 
common  law  in  general  can  be  more  safely  intrusted 
to  the  judiciary  than  to  the  legislature."  But  the 
rank  and  file  of  the  legal  profession  at  times  mani- 
fests a  narrowly  conservative  spirit,  opposed  to  sim- 
plifying changes  which  might  serve  to  render  the  work 
of  the  lawyer  less  necessary.     It  will  be  remembered 

324 


THE  LEGISLATIVE  PRODUCT 


that  it  was  legal  practitioners  who,  through  the 
unreasonable  amendments  imposed  upon  the  New 
York  Code  for  private  advantage,  caused  it  to  grow 
into  the  enormity  which  we  have  before  us.  The 
original  purpose  of  the  code  was  to  render  procedure 
so  simple  that  a  man  of  ordinary  intelligence  might 
try  his  own  case ;  but  at  present  it  would  be  too  much 
to  expect  even  the  most  expert  pleader  in  New  York 
to  know  the  law  of  procedure  in  all  its  details.  It 
has  been  acutely  remarked  that  lawyers  in  dealing 
with  commercial  matters  see  mainly  the  pathology  of 
business;  its  healthy  physiological  action  is  a  matter 
outside  of  their  professional  experience.  There  is  a 
grain  of  truth  in  this  statement,  which  to  some  ex- 
tent explains  the  limitations  of  lawyers  as  legisla- 
tors.^ 

The  defective  character  of  the  legislative  product 
in  the  United  States,  has  led  to  a  serious  consideration 
of  methods  of  relief  from  this  condition.  As  early 
as  1882,  the  American  Bar  Association  passed  a  reso- 
lution recommending  ^'the  adoption  by  the  several 
states  of  a  permanent  system  by  which  the  important 

^When  the  negotiable  instruments  law  favored  by  the  com- 
missioners of  uniform  statute  laws  came  before  the  Michigan 
legislature,  it  was  defeated  in  the  Senate;  the  object  being 
urged  against  it  "that  the  law  is  an  intrusion  on  the  practice 
of  the  profession  and  that  after  codification  the  average  man 
will  not  need  a  lawyer  to  collect  his  note.'^  G.  W.  Bates,  in 
the  Michigan  State  Bar  Association  Report,  1903,  p.  93.  The 
author  of  this  paper  soothes  the  apprehensions  of  his  brethren 
by  expressing  his  conviction  that  codification  does  not  mean 
the  abolition  of  litigation,  which  will  never  happen  till  the 
millennium  appears. 

'325 


AMERICAN  LEGISLATURES 


duty  of  revising  and  maturing  the  acts  introduced 
into  the  legislatures  shall  be  intrusted  to  competent 
officers^  either  by  the  creation  of  special  commissions 
or  committees  of  revision,  or  by  devolving  the  duty 
upon  the  attorney-general  of  the  state."  In  1886, 
there  was  submitted  to  the  Bar  Association  a  draft 
bill  by  which  it  was  provided  that  the  legislature  was 
to  appoint  a  joint  committee  on  the  revision  of  bills, 
to  which  all  bills  after  passing  both  houses  should  be 
referred  for  examination  as  to  clearness  of  expression 
and  harmony  with  existing  statutes.  This  method 
has  actually  been  employed  in  the  legislature  of  New 
York  and  in  many  other  states.  But  it  has  not  solved 
the  difficulty.  It  is  almost  impossible  to  find  members 
of  the  legislature  who  will  devote  their  time  to  this 
work  during  the  very  part  of  the  session  when  their 
attention  is  most  actively  engaged  by  matters  before 
the  houses.  The  Ohio  legislature  for  many  years  pos- 
sessed in  each  branch  a  committee  of  revision,  but  un- 
til recently,  this  committee  was  never  effectively  or- 
ganized, in  spite  of  the  fact  that  the  provision  of  the 
rules  relating  to  its  duties  was  mandatory.  In  1902, 
however,  with  a  strong  man  as  chairman,  the  House 
committee  held  a  meeting  and  ''decided  to  organize 
and  at  least  attempt  to  perform  the  duties  prescribed 
by  the  rules.  Announcement  of  this  fact  created, 
among  certain  members  of  the  House,  considerable 
consternation  and  indignation."^  However,  during 
the  session  there  were  referred  to  the  committee  and 
examined  by  it,  more  than  four-fifths  of  the  total  bills 
introduced  in  the  House.  Many  difficulties  were 
^  Ohio  State  Bar  Association  Report,  XXIV,  64. 
326 


THE  LEGISLATIVE  PRODUCT 


strewn  in  the  path  of  the  efforts  of  the  committee. 
The  Senate  promptly  abolished  its  committee  of  re- 
vision, upon  hearing  that  the  House  committee  was 
actually  organized  and  prepared  to  act.  The  com- 
mittee •was  not  allowed  to  recommend  indefinite  post- 
ponement, although  it  could  and  did  freely  recom- 
mend reference  of  apparently  invalid  biUs  to  the 
Judiciary  Committee.  The  committee  became  power- 
less in  the  rush  days  of  closing,  when  measures  were 
introduced  and  passed  under  suspension  of  the  rules, 
with  a  total  absence  of  debate  and  amendment.  *  *  Many 
bills  were  reported  out  by  the  Revision  Committee  ^ 
invalid,  but  upon  a  member's  arising  in  his  seat  and 
stating  that  the  subject  matter  of  the  bill  was  such 
that  it  affected  his  constituency  alone,  and  that  he 
would  assume  the  responsibility  therefor,  the  House 
would  frequently  reject  the  report,  and  permit  the 
bill  to  proceed  to  a  third  reading. ' '  ^ 

More  effective  work  in  improving  the  legislative 
product  can  be  done  by  an  expert  counsel  to  whom 
members  may  go  for  advice  and  the  drafting  of  their 
bills  and  to  whose  scrutiny  all  measures  are  to  be 
submitted  before  final  enactment.  The  attorney-gen- 
eral, aside  from  being  a  political  and  partisan  official, 
is  too  busy  with  the  general  duties  of  his  office  to  give 
effective  assistance  in  this  respect.  A  thoroughly 
capable  expert  who  with  his  assistants  could  give  all 
his  attention  to  this  exacting  and  important  work, 
would  be  able  to  improve  the  technical  quality  of 
legislation  materially.  A  beginning  has  been  made 
by  the  appointment  of  legislative  counsel  and  drafts- 

*  Idem,  p.  65. 

-  327 


AMERICAN  LEGISLATURES 


men  in  New  York/  South  Carolina,  Connecticut,  New 
Jersey,  and  Wisconsin,  but  a  further  development  of 
this  system  is  highly  to  be  desired.  In  the  British 
Parliament,  no  bill  is  introduced  which  has  not  passed 
through  the  hands  of  the  official  draftsman,  a  highly 
salaried  and  experienced  official.  He  gives  enact- 
ments the  form  in  which  they  will  usually  accomplish 
the  object  desired  and  which  will  place  their  provi- 
sions in  harmony  with  the  rest  of  the  law.  The  func- 
tions of  this  position  require  an  expert  knowledge  of 
the  statute  and  the  common  law  as  well  as  powers  of 
incisive  analysis  and  lucid,  brief  and  conclusive 
statement.  The  British  statutes  drawn  under  this 
system  are  indeed  models  of  w^orkmanship,  being  free 
from  the  verbiage,  redundancy,  and  obscurity  which 
characterize  so  many  American  enactments.  Justice 
Stephen  has  stated  the  requirements  of  a  legislative 
draftsman  in  the  following  language :    , 

**It  is  not  enough  to  attain  to  a  degree  of  precision 
which  a  person  reading  in  good  faith  can  understand ; 
but  it  is  necessary  to  attain,  if  possible,  to  a  degree  of 
precision  which  a  person  reading  in  bad  faith  cannot 
misunderstand.  It  is  all  the  better  if  he  cannot  pre- 
tend to  misunderstand  it. "  ^ 

*  In  New  York,  while  the  members  of  the  Lower  House  make 
considerable  use  of  the  services  of  the  draftsman,  the  senators 
mostly  disdain  to  do  so,  and  much  unsatisfactory  legislation 
originates  in  the  Upper  Chamber.  New  Jersey  has  a  ''super- 
visor of  bills ' '  who  looks  after  the  formal  correctness  of  enact- 
ments. 

^Lord  Thring,  for  many  years  parliamentary  draftsman, 
often  dwelt  on  the  manner  in  which  his  classical  training  had 

328 


THE  LEGISLATIVE  PRODUCT 


In  order  to  simplify  the  enacted  law  of  the  Ameri- 
can commonwealths,  and  to  give  it  a  greater  uni- 
formity, many  states  have  created  commissions  on 
uniform  statute  laws.  These  commissions  have  ef- 
fected a  national  organization,  holding  annual  con- 
ferences. The  movement  has  already  produced  a 
positive  result  in  the  adoption  by  twenty-four  states 
of  the  negotiable  instruments  act,  recommended  by 
the  commissioners  and  drafted  under  their  supervi- 
sion. The  conference  has  further  induced  promi- 
nent legal  experts  to  draw  a  uniform  sales  act,  a 
partnership  act,  and  a  warehousemen's  act.  It 
should  be  noted  that  the  work  of  the  commissioners 
thus  far  has  been  confined  to  commercial  law.  This 
branch  of  our  jurisprudence  ought  indeed  as  nearly 
as  possible  to  approach  uniformity  in  all  the  states, 
not  only  because  of  its  origin  is  the  law  merchant,  a 
product  of  the  whole  commercial  world,  but  because 
commerce  itself  is  principally  an  interstate  and  inter- 
national affair.  How  far  this  movement  can  be  made 
useful  in  other  branches  of  the  law  is  more  doubtful. 
The  statute  law  of  the  newer  states  has  heretofore 
suffered  a  good  deal  from  the  indiscriminate  copying 
of  statutes  of  older  commonwealths.  But  the  fact 
that  a  law  has  worked  well  in  New  York  is  no  reason, 
per  se,  why  it  should  be  adopted  in  New  Mexico.  The 
natural,  social,  and  economic  conditions  of  our  nation 
are  so  diversified  that  a  system  of  complete  uniform- 
ity would  by  no  means  seem  advisable.  It  may  indeed 
be  considered  in  many  respects  a  great  advantage  that 

developed  in  him  that  power  of  exact  expression  which  he 
needed  in  his  work. 


21* 


329 


AMERICAN  LEGISLATURES 


Congress  does  not  have  any  power  over  the  general 
or  common  law  of  the  nation.  For  with  all  the  con- 
fusion and  crudeness  of  the  statute  law,  the  oppor- 
tunity is  at  least  left  to  each  commonwealth  to  work 
out  the  system  most  appropriate  to  its  natural  condi- 
tions. 


330 


INDEX 


INDEX 


Adams,  John  Quincy,  109 
Agreements  and  treaties,  99 
Alabama,  rival  legislatures  in, 

218 
Amendments,  137 

constitutional,  introduction  of, 
156-158 

implied,  138-139 

to  code,  320 

to  U.  S.  Constitution,  29 
American  Bar  Association  and 

law  reform,  325 
Appointing  power  in  states,  223 
Appointments,  29,  86 
Apportionment,  congressional,  6 

state,  196 
Appropriations,  congressional, 
41,  56,  69,  112 

in  state  legislatures,  186  seq. 

permanent,  192 
Arbitration  treaties,  97,  100 

Bill  enrolled,  authority  of,  142 
Bills,  introduction  of,  139 
three  readings  of,  140 
title  of,  136-137 
Bi-partisan  organization,  238, 

242 
Bishop,  Mr.,  on  confused  legis- 
lation, 309 
** Black  Horse  Cavalry,''  246, 

248 
Bosses,  235 
Bribery,  231  seq.,  293 
indirect,  247,  251 

Calendars  of  the  House,  73 
California,  influence  of  governor 

on  legislation,  284 
Cannon,  Speaker,  54,  110,  116 


Carlisle,  Mr.  J.  G.,  41 
Carter,  J.  C,  on  law  reform,  324 
Carter,  Senator,  114 
Chicago,  relations  to  the  state  at 
large,  271 

street  railway  legislation,  265 
Classification  of  cities,  151,  153 
aay,  Henry,  82,  108,  113 
Cleveland,  President,  83,  89,  90, 

92,  94,  96 
Clinton,  Governor  De  Witt,  on 

codification,  316 
Codification,  316  seq. 
Colorado,  contested  elections,  220 

rival  legislatures  in,  219 
Commission  government,  286 
Committees,  congressional,  ap- 
pointment of,  50 

chairmanship,  66 

of  the  whole,  73 

on  rules,  45-46,  52,  57 

privileged,  74 

standing  and  select,  26 
Committees,  state  legislative, 
159,  257,  261 

appointment  of,  162 

conference,  179-182 

increased  size  of,  163 

inter-session,  174 

joint,  171-174 

judiciary,  167 

minority  reports,  170 

on  local  affairs,  167 

on  rules,  166 

sifting,  168 
Common  law  and  legislation,  315 

seq. 
Conference  committees,  congres- 
sional, 75,  113,  115 

state  legislative,  179-182 


333 


INDEX 


Congress,  adjournment,  26 

administrative  legislation, 
33-34 

bill  procedure,  28 

committees,  26 

Congressional  Eecord,  25 

delegates  and  representatives, 
19 

journal,  24 

membership,  7 

quorum,  23 

salaries,  22 

sessions,  18 

speaker,  19-20,  42,  46,  50 

voting,  25 
*  *  Congress, ' '  use  of  word,  4 
Congressional  Eecord,  25 
Connecticut,  corrupt  practices 
act,  252 

deadlock  of  1891-92,  221 

Farmers'  Association,  245 

representation,  198 

street  railway  legislation,  264 
Contempt,  power  to  punish  for, 

176 
Contested  elections  in  Congress, 

215 
Crane,  Governor,  285 

Dalzell,  Mr.,  on  appropriations, 

58 
Delegates  and  representatives, 

19 
Dilatory  motions,  44,  49 
Dingley  tariff,  68,  111 
Disabilities,  political,  14-15 
Douglas,  Governor,  192,  278 

Elections,  congressional,  11 
of  state  officers,  220  seq. 

Electoral  franchise  for  con- 
gressmen, 9 

Elkins  anti-trust  act,  282 

Engrossment,  184 

Enrolled  bill,  authority  of,  142 
seq. 

Enrollment,  186 

Executive  agreement,  99, 101-102 


Female  suffrage,  11 
Field,  David  Dudley,  318,  324 
Financial  committees,  190 
Financial  legislation,  186  seq. 
Folk,  Governor,  278 

and  municipal  home  rule,  271 

and  the  lobby,  255 
Foreign  affairs,  94 
Franchises,  9 

Gage,  Governor,  on  special  leg- 
islation, 154 

Garfield,  President,  83,  88 

Gavel  rule,  178,  262 

General  and  special  laws,  148 

Georgia,  codes,  322 

Gerrymander,  200  seq. 

Goebel  law,  267 

Government  by  discussion,  39 

Governor,  influence  on  legisla- 
tion, 283 

Hay-Pauncefote  treaty,  96 
Hayes,  President,  and  the  Sen- 
ate, 88 
Hinds,  A.  C,  71 
Hemenway,  Mr.,  on  appropria- 
tions, 70 
Henderson,  Speaker,  52 
Higgins,  Governor,  192 
Hill,  Lieutenant-Governor,  43 
Hoar,  Senator,  120 
Hold-up  bills,  253 
House  of  Eepresentatives,  33 

calendars,  73 

choice  of  President  of  the 
United  States,  32 

Committee  on  Eules,  45-46 

concentrated  authority,  40,  53, 
60 

Conference  Committees,  75, 
113,  115 

debating  in,  67 

dilatory  motions,  44 

filibustering,  49 

money  bills,  31,  108 

officers,  21 

opposition  to  Senate,  64,  115 


334 


INDEX 


privileged  reports,  74 

procedure,  71 

rules,  21,  76 

selection  of  leaders,  47,  62 

seniority,  promotion,  63,  65 

speaker,  19-20,  42,  46,  50 

special  orders,  75 

Illinois,  bi-partisan  group,  242 
gas  bill  of  1897,  248 
gerrymanders  in,  202-203 
legislative  committees,  163 
legislative  methods  in,  256 
minority  representation,  213 
Supreme  Court,  on  apportion- 
ment, 206 
traction  legislation,  252,  265 
Illinois  Voters'  League,  280 

report,  260 
Impeachments,  31 
Indiana,  Supreme  Court,  on  ap- 
pointing power,  224 
Supreme  Court,  on  appor- 
tionment, 210-211 
Individualistic  policy,  84,  230 
Information,  requests  for,  90- 

91 
Insurance  companies,  250,  253 
Interests,  representation  of,  290 

seq. 
Introduction  of  bills,  139 
Investigations,  176  seq. 

Jackson,  Andrew,  83 
Jefferson  on  appointments,  86 
Jerome,  Mr.,  273 
Joint  committees,  171-174 
Journal,  authority  of,  143 

Kansas,  legislatures,  218 
refinery  bill,  281 
Standard  Oil  lobby,  256 
Supreme  Court,  on  appor- 
tionment, 207 
Kentucky,  constitutional  provi- 
sions on  procedure,  146 
election  law,  227,  267 


Lanman,  Governor,  on  general 

appropriations,  194 
Law  reform,  316  seq. 
Lawyers,  influence  on  legisla- 
tion, 287  seq 
and  law  reform,  324 
as  legislative  agents,  292 
Legislation,  state,  volume  of, 
300-301 
and  common  law,  315  seq. 
defects  in  form,  308  seq. 
field  of,  127 
financial,  186  seq. 
labor,  313 

special  and  local,  300  seq. 
technique  of,  307  seq.,  327  seq. 
trusts,  312 
Legislative  experts,  327 
Legislative  investigations,  176 

seq. 
Legislatures,  state,  constitu- 
tional limitations  on,  129 
duration  of  session,  131 
payment  of  members,  131 
powers  of,  129 
procedure,  183  seq. 
qualifications  for  membership, 

214 
rival,  217  seq. 
Littlefield  anti-trust  bill,    69 
Lobby,  233  seq.,  249,  255,  290 

seq. 
Lodge,  Senator,  on  powers  of 

the  Senate,  80 
Lowe,  Eobert,  on  law  reform, 

318 
Lowell,  A.  L.,  on  parties,  276 

Maryland,  local  legislation  in, 
301 

representation,  198 
Massachusetts,  act  against  lob- 
bying, 293  seq. 

committee  hearings,  174 

legislative  sessions,  133 

semi-colon  law,  310 
McKinley,  President,  96 
Membership  contests,  213  seq. 


335 


INDEX 


Michigan,  apportionment,  208, 
211 
negotiable  instruments  act, 

325 
** ripper"  legislation,  270 
MUls  tariff  bill,  110 
Minnesota,  revision  of  1903,  322 
Minority  representation,  213 
Missouri,  appropriation  bills, 
190 
breeders'  law,  273 
constitutional  provisions  on 
procedure,  140  * 

Mueller  bill,  262,  266 

Nebraska,  implied  amendments, 

139 
Negotiable  instruments  act,  329 
New  Hampshire,  Breeders '  Club 

charter,  274 
New  Jersey,  local  laws  in,  305 
New  York,  apportionment,  204- 
205 
bi-partisan  boards,  245 
board  of  statutory  consolida- 
tion, 321 
canal  legislation,  309 
code  of  civil  procedure 

amendments,  320-321 
constitutional  provisions  on 

procedure,  140 
franchise  tax  law,  284 
law  reform,  316 
legislative  library,  297 
representation,  199 
special  legislation,  151,  306 
Stevens  committee,  175 
supply  bill,  189,  193 
Supreme  Court,  on  apportion- 
ment, 212 
New  York  City,  legislation  af- 
fecting, 272 
Nixon,  Speaker,  178 
North  Carolina,  Supreme  Court, 
on  authentication  of  bills, 
145 


Odell,  Governor,  192,  285 


Ohio,  appointing  power  in,  225 
Committee  of  Revision,  326 
Conference  Committees,  180 
Drake  Committee,  175 
gerrymanders  in,  203 
Royer  law,  310 

Over-legislation,  300 

Party  organization  and  United 
States  Senate,  120 
influence  on  legislation,  275 
seq. 
Payne,  Mr.,  on  the  rules,  60 
Pennsylvania,  alien  tax  law,  314 
bi-partisanship,  244 
Conference  Committees,  181 
confused  legislation,  310 
constable  bill,  264 
Constitutional  Convention  of 

1873,  129,  231 
courts,  on  classification  of 

cities,  153 
legislative  methods,  259-260 
< '  ripper ' '  legislation,  266,  269 
Supreme  Court,  on  legisla- 
tion, 314 
Permanent  appropriations,  192 
Philadelphia,  Law  and  Order 
Society,  265,  279 
Board  of  Tax  Revision,  267 
Philippine  railway  bill,  119 
Pittsburg  "ripper"  bill,  269 
Police  administration,  272 
President,  influence  of,  in  Con- 
gress, 35,  37 
Press,  279 
Price,  Senator,  201 
Private  and  local  legislation, 

300 
Private  bill  procedure  in  Eng- 
land, 306 
Public  opinion,  278 

Qualifications  for  membership 

in  Congress,  13 
membership  in  legislatures, 

214 
Quay,  Senator,  114,  122 


336 


INDEX 


Quorum,  counting  a,  43,  49 
Eaines  hotel  law,  268 
Eeciprocity  treaties,  96,  104- 

105 
Eeed,  Thomas  B.,  41-42,  44,  48, 

50,  62,  67,  69,  70,  111 
Eeform  movements,  252,  279- 

280 
Eepresentation,  legislative,   197 

seq. 
Eesignation  by  members  of 

Congress,  16 
Eesolutions,  27,  134 

joint  and  concurrent,  135 
Ehode  Island,  bi-partisanship, 

245 
representation,  198 
street  railway  legislation,  263 
'^Eipper"  bills,  238,  266  seq. 
Eoosevelt,  Governor,  284 

San  Domingo  treaty,  100,  102- 
103 

Senate,  United  States,  76 
and  appropriations,  112 
and  foreign  affairs,  94,  106 
and  House  rules,  107 
and  money  bills,  108-113 
and  party  organization,  120 
and  states'  rights,  81 
classes  in,  17 
courtesy  of  the,  87 
demands  for  information,  90 
economic  interests  in,  85,  123 
impeachments,  31 
individualistic  policy  of,  84, 

230 
influence,  37 
lawyers  in,  123 
liberty  of  speech,  113-114 
liherum  veto  in,  118 
negative  policy  of,  106 
obstructive  policy  of,  85 
order  of  business,  77 
periods  in  development  of,  82 
power  over  appointments,  29, 
86 

Senatorial  courtesy,  87 


Senators,  election  of,  12,  222 
popular  election  of,  125 

Sessions,  annual,  biennial,  quad- 
rennial, 132-133 

Sifting  Committee,  168 

Speakership  in  Congress,  19-20, 
42,  46,  50 
explanation  of  its  power,  59 
revolt  against,  55 

Speakership,  in  state  legisla- 

Itures,  178,  243 
Special  and  local  legislation, 
147  seq.,  300  seq. 
Stephen,  Justice,  on  legislative 

draftsmanship,  328 
Stevens,  Thaddeus,  109 
''Strike,"  253  seq. 
Supreme  Court,  United  States, 
on  lobbying,  291 

Tenure  of  office  act,  89-91 
Thring,  Lord,  on  legislative 

draftsmanship,  328 
Title  of  bills,  136-137 
Toole,  Governor,  278 
Trust  legislation,  312 

Uniform  statute  laws,  commis- 
sions on,  329 

Vacancies  in  House  of  Eepre- 
sentatives,  16 
in  Senate,  17 

Veto,  28 

in  states,  154,  186 
of  separate  items,  188 

Virginia,  code,  322 

Webster,  Daniel,  108 

on  apportionments,  196 
Wilson  tariff  bill,  112 
Wisconsin,  act  against  lobby- 
ing, 293 
gerrymandering  in,  203 
legislative  reference  library, 

296 
Supreme  Court,  on  apportion- 
ment, 209,  211 


337 


^-'^A^itAI?^ 


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MAR  1 1  1990 


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